INTRODUCTION

Substantive Law Remedial Law

It is that part of the law which creates, defines or
regulates right concerning life liberty of property
or the power of agencies or instrumentalities for
the administration of public affairs.
It makes vested rights possible.
It is prospective in application.
It cannot be enacted by the Supreme Court.
It refers to the legislation providing means or
methods whereby causes of action may be
effectuated, wrongs redressed and relief obtained
(also known as ADJECTIVE LAW).
It has NO vested rights.
It governs acts and transactions which took place
(Retroactive).
The supreme Court is expressly empowered to
promulgate procedural rules.

Judicial Power includes the duty of the courts of justice to settle actual controversies involving rights,
which are legally demandable and enforceable, and to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government (Section 1, Article VIII, 1987 Constitution).

The power of judicial review is the Supreme Court’s POWER TO DECLARE a law, treaty, international or
executive agreement , presidential decree, ordinance , or regulation UNCONSTITUTIONAL.

Jurisdiction (Latin: “juris” and “dico”- I speak of the law) is the power and authority of a court to try,
hear, and decide a case and to carry its judgments into effect.

 The statement that “Jurisdiction is conferred by substantive law” is NOT accurate because only
jurisdiction over the subject matter is conferred by substantive law. Jurisdiction over the parties,
issues and res is covered by procedural law.

REQUISITIES FOR THE VALID EXERCISE OF JURISDICTION

1. That it must be have jurisdiction over the persons of the parties

Jurisdiction Over The Person Of The Plaintiff
It is acquired the moment he files his
complaint, petition or initiatory pleading.
Jurisdiction Over The Person Of The
Defendant
It is acquired either by his voluntary
appearance in court and his submission to its
authority, or by service of summons or other
coercive process upon him.

2. That it must have jurisdiction over the subject matter of the controversy.

 Jurisdiction over the subject matter is determined by the allegations made in the complaint.
 It is conferred by law and not by the voluntary act or agreement of the parties.

General Rule: Lack of Jurisdiction over the subject matter of an action cannot be waived by the
parties and may be raised at any stage of the proceeding the court being authorized to dismiss
the case motu propio.
 Exceptions:
a. Estoppel by laches - (Tiram vs. Sibonghanoy, G.R No. L-2150, April 15, 1968)
b. Estoppel in pais – Where defendant actively participated in all stages of the proceedings
before the trial court and invoked its authority by asking for an affirmative relief (Soliven vs.
Fastforms, Inc. G.R No. 13931, Oct. 18, 2004)

 Jurisdiction is governed by the law at the time the action is COMMENCED.

3. That it must have jurisdiction over the res (thing or property under litigation).

 It is acquired either by the seizure of the property under legal process or as a result
of the institution of legal proceedings, in which the power of the court is recognized
and made effective.
4. That it must have jurisdiction over the issues as raised in the pleadings of by their agreement in a
pre-trial order or those tried by the implied consent of the parties.

Jurisdiction Exercise of Jurisdiction

Pertains to the authority to hear and decide Any act of the court pursuant to such authority
cases. including the decision and its consequences.

 Where there is exercise of jurisdiction in the absence of jurisdiction, the court would
be committing an error of jurisdiction.
 Where on the other hand, the court acted with jurisdiction but committed
procedural errors or errors in the appreciation of the facts or of the law, the error
would be a mere error of judgment not of jurisdiction.

Error of Jurisdiction Error of judgment

One where the court, officer or quasi-judicial
body acts without or in excess of jurisdiction,
or with grave abuse of discretion.
It renders a judgment void or at lease
voidable.
Correctible by certiorari.
One that the court may commit in the exercise
of jurisdiction, it includes errors of procedure
or mistakes in the court’s finding.
Such an error does not make the court’s
decision void.
Correctible by appeal.

CLASSIFICATION OF JURISDICTION

1. As to CASE Tried:
 GENERAL jurisdiction – exercised over all kinds of cases, except those withheld
from the plenary powers of the court.
 LIMITED jurisdiction –Exercised over and extends only to particular or specified
cases.

2. A s to NATURE of the Cause:

 ORIGINAL jurisdiction – Exercised by courts in the first instance.
 APPELLATE jurisdiction – Exercised by a superior court to review and decide cases
previously decide by a lower court mow elevated for judicial review.
 3. As to Nature and Extent of EXERCISE:
 EXCLUSIVE jurisdiction – Confined to a particular court to the exclusion of other courts.
 CONCURRENT jurisdiction – Pertaining to different courts over the same subject matter
at the same time and place. When two or more courts have concurrent jurisdiction over
a case, the court which has first validly acquired jurisdiction takes it to the others (also
referred to as confluent or coordinate jurisdiction).

4. As to SITUS:
 TERRITORIAL jurisdiction – Exercised within the limits of the place where the court is
located.
 EXTRA- TERRITORIAL jurisdiction- Exercised beyond the confines of the territory where
the court is located.

COURTS OF LAW vs. COURTS OF EQUITY

A COURT OF LAW decides a case according to what the promulgated law is while a COURT OF EQUITY
adjudicates a controversy according to the common percepts of what is right and just without inquiring
in to the terms of the statutes.

In the Philippines every court both original and appellate exercises both the legal and equitable
jurisdictions. (U.S vs. Tamparong, 31 Phil 321)

Constitutional Court Statutory Courts

Created by the Constitution Created by Law
Cannot be abolished by Congress without May be abolished by Congress by just simply
amending the Constitution. repealing the law which created those courts.
Ex. The Supreme Court Ex. The Court of Tax Appeals.

SUPERIOR COURT vs. INFERIOR COURT

SUPERIOR COURTS refer to those courts which have the power of review or supervision over another
lower court while INFERIOR COURT are those which in relation to another are lower in rank and subject
to review and supervision of the latter.

COURTS OF RECORD
Those whose proceedings are enrolled and which are bound to keep a written record of all trials and
proceeding handled by them. R.A No. 6031 mandates all Municipal Trial Courts to be courts of record.

POLICY OF JUDICIAL HIERARCHY

This policy means that a higher court will not entertain direct resort to it unless the redress desired
cannot be obtained in the proper courts.

While it is true that the SC, CA, and the RTC have concurrent original jurisdiction to issue writs of
Certiorari, Prohibition, and Mandamus, such concurrence does not accord litigants unrestrained
freedom of choice of the court to which the application for the writ may be directed. The application
should be filed with the court of lower lever unless the importance of the issue involved deserved the
action of the court of the higher level.

DOCTRINE OF JUDICIAL SECURITY STABILITY OR NON INTERFERENCE

General Rule: no court has the authority to interfere by injunction with the judgment of another court
of coordinate jurisdiction or to pass upon or scrutinize and much less declare as unjust a judgment of
another court (Industrial Enterprises Inc. vs. CA, G.R No. 88550, April 18, 1990).

Exception: The doctrine of judicial stability does not apply where a third party claimant is involved
(Santos vs. Bayhon, G.R. No. 886643, July 23, 1991)

DOCTRINE OF ADHERENCE TO JURISDICTION (Also known as Continuity of Jurisdiction)

Once jurisdiction has been acquired, the court retains jurisdiction until the final termination of the case.
General Rule: Law enacted during the pendency of a case where transfers jurisdiction to another court
does not affect cases prior to its enactment.

Exceptions:
1. When the new law EXPRESSLY PROVIDES for a retroactive application;
2. When a change of jurisdiction is CURATIVE in character.

EXCLUSIONARY PRINCIPLE
The court first acquiring jurisdiction excludes all others.

DOCTRINE OF PRIMARY JURISDICTION

Under this doctrine, courts will not resolve a controversy involving a question which is within the
jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound
administrative discretion requiring the special knowledge and experience of said tribunal in determining
technical and intricate matters of fact (Villaflor vs. CA, G.R. No. 95694, Oct. 8, 1997).

DOCTRINE OF ANCILLARY JURISDICTION

It involves the inherent of implied powers of the court determined issues incidental to the exercise of its
primary jurisdiction.

Under its ancillary jurisdiction, a court may determine all questions relative to the matters brought
before it, regulate the manner in which a trial must be conducted, determined the hours at which the
witnesses and lawyer may be heard, direct the disposition of money deposited in court in the course of
the proceedings, appoint a receiver and grant an injunction, attachment or garnishment.
 REMEDIAL LAW
JURISDICTION

I. CIVIL METROPOLITAN TRIAL COURTS REGIONAL TRIAL COURTS

CASES (INFERIOR COURTS) BP 129
BP129
EXCLUSIVE 1. Actions involving personal 1. The action is incapable of
ORIGINAL property, whose value does pecuniary estimation;
NOT exceed P300,000 or in 2. Title to or possession of real
Note: The adjusted Metro Manila the amount property or any interest
jurisdictional does not exceed P400,000; therein, the assessed value
amount is based on EXCEEDS P20, 000 or EXCEEDS
Sec. 5 of R.A. 7691, 2. Demand for money NOT P50, 000 in Metro Manila.
this year being the exceeding P300,000 or in 3. Admiralty and maritime cases
2nd 5- year period Metro Manila NOT exceeding where demands or claim
mentioned therein. P400,000; EXCEEDS P300,000 or EXCEEDS
P4000,000 in Metro Manila.
MTC Note: Exclusive of Interest 4. Matters of probate (testate and
1. PERSONAL damages for whatever of kind, intestate) where gross value of
PROPERTY attorney’s fees, litigation the state EXCEEDS P300,000 or
-P300,000 expenses, and costs (IDALEC), EXCEEDS P400,000 in Metro
2. DEMANDS the amount of which must be Manila;
FOR MONEY specifically alleged but the 5. All actions involving the
-P300,000 filing fees thereon shall be contracts of marriage and
3. PROBATE paid; family relation (See R.A. 8369
-P300,000  The exclusion of the amending BP.129).
4. ADMIRALTY- term “damages of Family Courts now have
P300,000 whatever kind” exclusive original jurisdiction
5. POSSESSION applies to cases where over;
-P200,000 the damages are a. Petition for guardianship ,
6. CADASTRAL merely incidental to or custody of children , habeas
-P100,000 a consequence of the corpus in relation to the
7. INCLUSION\ main cause of action. latter (but the SC and the
EXCLUSION However in cases CA have not been deprived
OF VOTERS where the claim for of their original
8. RULES ON damages is the main jurisdiction);
SUMMARRY of action, the amount b. Petition for adoption of
PROCEDURE of such claim shall be children and the revocation
9. HABEAS considered in thereof;
CORPUS\BA determining the c. Complains for annulment
LL jurisdiction of the and declaration of nullity of
court; marriage , matter relating
3. Probate proceedings (testate to the marital status and
or intestate) where the gross property relations of
value of the estate does NOT husband and wife or those
exceed P300,000, or in Metro living together under
Manila the value does NOT different status or
exceed P400,000; agreement , and petitions
4. Actions involving title to or
possession of real property, or
any interest therein where the
assessed value or interest
therein NOT exceed P20,000
or in Metro Manila, does not
exceed P50,000;
5. Inclusion and exclusion of
voters (BP 881, Sec. 138);
6. Admiralty and maritime cases
where demand or claim does
NOT exceed P300,000 or in
Metro Manila , does NOT
exceed P400,000;
7. Those covered by the Rules on
Summary procedure:
a. Forcible Entry and
Unlawful Detainer
(FEUD)
 With jurisdiction to
resolve issue of
ownership to
determine ONLY the
issue of possession;
 Irrespective of the
amount of damages or
unpaid rental sought
to be recovered.
Where attorney’s fees
are awarded, the
same shall NOT
exceed P200,000
b. Other civil cases,
except probate
proceeding, where the
total amount of the
plaintiff’s claim does
NOT exceed P100,000
or does NOT exceed
P200,000 in Metro
Manila, exclusive of 6. Cases NOT w\in the exclusive
interests and costs (as
amended by A.M.
No.02-11-09-SC
affective November
25,2002).
7. Civil actions and special
for dissolution of conjugal
partnership of gains;
d. Support and\or
acknowledgement;
e. Summary judicial
proceeding under the
Family Code; and
f. Petition for declaration of
status of children voluntary
or involuntary commitment
of children matter, relating
to parental –authority and
other cases cognizable
under PD 603, EO 56 (Series
of 1996) and other related
laws.
Under the Family Code, the
family home is deemed
constituted, hence, no need
for its constitution.
Special Provisional remedies:
a. In cases of violence among
the family members living
in the same domicile or
household, the Family
Court may issue a
restraining order against
the accuse or defendant
upon verified application
by the complainant or the
victim for relief from
abuse;
b. The court may order the
temporary custody of
children in all Civil actions
for their custody, Support
pendente lite , including
deduction from the salary,
and use of conjugal home
and other properties in all
civil actions for support.
jurisdiction of any court,
tribunal, person or body
exercising judicial or quasi-
judicial functions (general
jurisdiction of RTC);
 proceedings falling within the
exclusive original jurisdiction of
Juvenile and Domestic Relations
Court and of Court of Agrarian
Relations as now provided by
law;
8. All other cases where demand
EXCLUSIVE of IDALEC or the
value of the property in
controversy EXCEEDS P300,000
or EXCEEDS P400,000 in Metro
Manila;
9. Under Sec. 5.2 of the Securities
and Regulation Code to hear
and decide:
 Cases involving devices
or schemes employed
by or any acts of the
board of directors,
business associates, its
officers or partnership,
amounting to fraud and
misrepresentation
which may be
detrimental to the
interests of the public
and/or of the
stockholders, partners,
members, or
associations or
organizations
registered with the SEC.
 Controversies arising
out of intra-corporate
or partnership
relations.
 Controversies in the
elections or
appointments of
directors, trustees,
officers or managers of
such corporations,
partnership or
associations.
 Petitions of
corporations,
partnership of
associations to be
 declared in the state of
suspension of
payments in cases
where the entity
possesses sufficient
property to cover all its
debts but foresees the
impossibility of meeting
them when they fall or
due or in cases where
the entity has no
sufficient assets to
cover its liabilities but is
under the management
of a Rehabilitation
Receiver or
Management
Committee.

CONCURRENT With RTC - NONE With SC- Actions affecting ambassadors,

public ministers and consuls.

With SC, CA and Sandiganbayan-

Issuance of writs of certiorari,
prohibition, mandamus, habeas corpus,
quo warranto, injunction against lower
courts.

With SC, CA and Sandiganbayan-

issuance of writs of amparo and habeas
data.

With MTC, etc.-NONE.

With Insurance Commissioners- Claim

NOT exceeding P100,000.
DELEGATED Ma be assigned by the SC to hear
cadastral or land registration cases
when there is no controversy over the
land or in case f contested lands, the
value does NOT exceed P100,000.

SPECIAL Petition for Habeas Corpus OR SC may designated certain branches of

application for ball in criminal cases in RTC to try exclusively criminal cases,
the absence of all RTC judges in the juvenile and domestic relations cases,
province or city. agrarian cases, urban land reform cases

APPELLATE
CIVIL CASES
EXCLUSIVE ORIGINAL
CONCURRENT
Note: While the Rules provide for
the concurrent jurisdiction among
the RTC, CA, and SC, the same is
still subject to the principle of
HIERARCHY OF COURTS, pursuant
to Sec 4 of Rule 65.
not falling w/in the jurisdiction of any
quasi- judicial body and other special
cases in the interest of justice.
All cases decided by the lower courts in
their respective territorial jurisdiction
except decisions of lower courts in the
exercise of delegated jurisdiction.
SUPREME COURT COURT OF APPEALS
Art VIII Sec.5 1987 Constitution BP 129
Petitions for certiorari, Actions for annulment of
prohibition or mandamus judgment of the RTC.
against:
a. CA;
b. COMELEC;
c. COA;
d. Sandiganbayan.
With Court of Appeal (CA) With Supreme Court (SC)
a. Petitions for certiorari, a. Petitions for certiorari,
prohibition or prohibition or
mandamus (CPM) mandamus (CPM)
against RTC, habeas against RTC, habeas
corpus, quo warranto; corpus, quo warranto,
b. Petitions for certiorari, petitions for certiorari,
or mandamus against prohibition or
the NLRC. mandamus against the
NLRC (However this
should be filed with the
CA first – see St. Martin
Funeral Home vs. CA, G
R. 130866 September
16, 1998)
With CA, the Sandiganbayan With CA, the Sandiganbayan
and RTC and RTC
a. Petitions for issuance c. Petitions for issuance of
of writs of Amparo. Writ of Amparo;
b. Petitions for Habeas d. Petitions for Habeas
Data, where the action Data, where the action
involves public data or involves public data or
government office. government office
With the CA, RTC and With CA only unless otherwise
 Sandiganbayan provided by law
a. Petitions for certiorari, a. Petitions for certiorari,
prohibition or prohibition or
mandamus against mandamus against qua-
inferior courts and judicial agencies (likes
other bodies; CSC, CBAA, CTA, etc.)
b. Petitions for habeas (Amendments to Rule
corpus and quo 65, A.M. No. 07-7-12-
warranto. SC).
With RTC With the SC, RTC and
Actions against ambassadors, Sandiganbayan
other public ministers and a. Petitions for certiorari,
consuls prohibitions or
mandamus against
inferior courts and
other bodies; and
b. Petitions for habeas
corpus and quo
warranto.
APPELLATE Review, revise, modify, or Exclusive Appellate jurisdiction
affirm on appeal or certiorari over all final judgment,
the following: decisions, resolutions, orders or
a. All cases in which the awards of RTC, and quasi-
constitutionality or judicial agencies except those
validity of any treaty, falling with the appellate
international or jurisdiction of the Supreme
executive agreement, Court in accordance with the
law, presidential Constitution, Labor Code, B.P.
decree, proclamation, 129 and of subparagraph 1 of
order, instruction, the 3rd paragraph and
ordinance or regulation subparagraph 4 of the 4 th
is in question; paragraph of section 17 of the
b. All cases involving the judiciary Act of 1948.
legality of any tax,
impost, assessment, or
toll, or any penalty
imposed in relation
thereto;
c. All cases in which the
jurisdiction of any
lower court is in issue;
d. All criminal cases in
which the penalty
imposed is reclusion
perpetua or higher ;
e. All cases in which only
an error or question of
law is involved
 CRIMINAL CASES

CRIMINAL MTC RTC SANDIGANBAYAN

CASES
EXCLUSIVE 1. Offences 1. Offenses the imposable The following requisites
ORIGINAL punishable with penalty for which must concur:
imprisonment exceeds 6 years 1. The offense
NOT exceeding six imprisonment and committed is the
(6) years 2. Offenses not within the violation of:
irrespective of exclusive jurisdiction or a. R.A.3019(An
the amount of any court, tribunal or ti Graft);
fine, and body except those falling b. R.A. 1379(ill
regardless of under the exclusive Gotten
other imposable jurisdiction of the Wealth);
accessory or Sandiganbayan. c. Chapter 2,
other penalties, Note: In cases where the only Section 2,
including the civil penalty is a fine, the amount Title 7, Book
liability arising thereof shall determine 2 of the RPC
from such jurisdiction. If the amount (Bribery,
offences or EXCEED P4,000. RTC’s have etc.);
predicated jurisdiction (Adm. Cir. 09-94) d. E.O. No’s , 2,
thereon, 14, 14-
irrespective of A(Sequestrati
kind, nature, on cases);
value or amount e. Other
thereof; offenses or
felonies
whether
simple or
complexed
with other
crimes.
2. The offender
committing the
offense in item a,
b, c, and e is a
public official
occupying a
position classified
as salary grade 27
and higher;
3. The offense was
committed in
relation to office.
2. Offenses Family court- criminal cases Civil and criminal cases
 involving where: filed pursuant to and in
DAMAGE TO a. One or more of the connection with
PROPERTY accused is\are below Executive Order Nos. 1, 2,
through criminal eighteen (18) years of 14, and 14a (filed by
negligence. age but not less than PCGG).
Note: In case where the nine (9) years of age; or
only penalty is a fine, the b. Where one of the victims
amount thereof shall is a minor or the time of
determine jurisdiction. If the commission of the
the amount does NOT offense;
exceed P4,000. MTC’s c. Cases against minors
have jurisdiction (Adm. cognizable under the
Cir. 09-94). Dangerous Drug Act;
d. Violations of RA 765,
otherwise known as the
“Special protection of
Children Against Child
Abuse, Exploitation and
Discrimination Act” as
amended by RA 7658;
and
e. Cases of domestic
violence against women
and children.
3. Those covered by
the Rules on
Summary
procedure:
a. Violations of
traffic laws,
rules and
regulations;
b. Violations of
the rental
law;
c. Violations of
municipal or
city
ordinance;
d. Violations of
BP 22,
otherwise
known as
Bouncing
Checks Law
(A.M. No. 00-
11-01-SC,
effective April
 15,2003);
e. All other
criminal cases
where the
penalty is
imprisonment
not exceeding
6 months
and\or
P1,000fine
irrespective
of other
penalties or
civil liabilities
arising there
from and in
offenses
involving
damage to
property
through
criminal
negligence
where the
imposable
fine is not
exceeding
P10,000.
Petitions for the issuance
of the writs of the
mandamus, prohibition,
certiorari , habeas
corpus , injunction and
other ancillary writs and
processes in aid of its
appellate jurisdiction:
PROVIDED that the
jurisdiction over this
petitions shall not be
exclusive of the Supreme
Court.
APPELLATE A cases decided by the MTC’s in Appeals fro the final
their respective territorial judgment, resolutions or
jurisdiction. orders of regular courts
where all the accused are
occupying positions lower
than salary grade 27 or
not otherwise covered by
 the preceding
enumeration.

CRIMINAL CASES SUPREME COURT COURT OF APPEALS

EXCUSIVE ORIGINAL Petition for certiorari, Actions for annulment of
prohibition and mandamus judgment of the Regional Trial
against Court of Appeals and Courts Crimes of Terrorism
Sandiganbayan. under Human Security. Act of
2007.
CONCURRENT With the CA: petitions for With the SC: petition for
certiorari, prohibition and certiorari, prohibition and
mandamus against the RTC’s. mandamus against the RTC’s.
With the CAand RTC: petitions
for certiorari, prohibition and With the SC and RTC: petitions
mandamus against the MTCs. for certiorari, prohibition and
mandamus against the RTC’s.
APPELLATE By petition for review on By notice of Appeal:
certiorari: From the RTC in the exercise of
 From the CA; its original jurisdiction, except
 From the those appealable to the
Sandiganbayan; Sandiganbayan.
 From the RTC where
only an error or question From the RTC where penalty
of law is involved. imposed is reclusion perpetua or
life imprisonment or where a
Note: In People vs. Mateo G.R lesser penalty is imposed but for
Nos. 147678-87, July 7, 2004 the offences committed in the same
Supreme Court held that while occasion or which arose out of
the Fundamental Law requires a the same occurrence that gave
mandatory review by the rise to the more serious offence
Supreme Court of cases where for which the penalty of death,
the penalty imposed is reclusion reclusion perpetua, or life
perpetua, life imprisonment is imprisonment is imposed
imposed, the Court now deems (Section 3 Rule 122 as amended
it wise and compelling to provide by AM. NO. 00-5-03-SC).
in this cases a review by the
Court of Appeals before the case By automatic review (i.e. no
is elevated to the Supreme notice of appeal is necessary)
Court. A prior determination by From the RTC, in cases wherein
the Court of Appeals on, the death penalty is imposed.
particularly, the factual issues,
would minimize the possibility of By petition for review:
an error of judgment. If the From the RTC in cases appealed
Court of Appeals should affirm thereto from lower courts and
the penalty of death, reclusion not appealable to the
perpetua or life imprisonment, it Sandiganbayan.
 could then render judgment
imposing the corresponding
penalty as the circumstances so
warrant, refrain from entering
judgment and elevate the entire
records of the case to the
Supreme Court for its final
disposition.

SUPREME COURT
ORIGINAL 1. All cases involving custody, guardianship, legitimacy, paternity and filiations
arising under the Code of Muslim Personal Law.
2. All cases involving disposition, distribution and settlement of estate of
deceased Muslims, probate of wills, issuance of letters of administration or
appointment of administrations or executors regardless of the nature or
aggregate value of property.
3. Petitions for the declaration of absence and death for the cancellation or
correction of entries in the Muslim Registries mentioned in the Title VI, Book
Two of the Code of Muslim Personal Laws;
4. All actions arising from he customary contracts in which the parties are
Muslim, if they have not specified which law shall govern their relations; and
5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus,
and all other auxiliary writs and processes in aid of its appellate jurisdiction.

CONCURRENT 1. Petitions by Muslim for the Constitution of a family Home, change of name,
and commitment of an insane person to an asylum;
2. All other personal and legal actions not mentioned in paragraph 1 (d)
wherein the parties involved are Muslims except those for forcible entry and
unlawful detainer, which shall fall under the exclusive jurisdiction of the
Municipal Circuit Court; and
3. All civil special actions for interpleader or declaratory relief wherein the
parties are Muslims or the property involved belongs exclusively to Muslims.
Cases that can 1. Offences defined and punished under PD 1083
be filled 2. Disputes relating to :
a. Marriage
b. Divorce
c. Betrothal or breach or contract to marry
d. Customary dower (mahr)
e. Disposition and distribution of property upon divorce
f. Maintenance and support
g. Consolatory gifts (mut’a) and
h. Restitution of marital rights
3. Disputes relative to communal properties.
 CIVIL PROCEDURE

RULE 1: GENERAL PROVISIONS

SECTION 1. TITLE OF THE RULES

The Rules of the Court DO NOT HAVE retroactive effect. They can, however, be made applicable to cases
pending at the time of their passage and therefore are retroactive in that sense.

The rule making power of the Supreme Court has the following limitations:
1. Simplified and inexpensive procedure for the speedy disposition of cases.
2. Uniform for all courts of the same grade; and
3. Shall not diminish, increase of modify substantive rights (Art. VIII Sec. 5[5], 1987 Phil.
Constitution)
 In the interest of just and expeditious proceedings, the Supreme Court may suspend the
application of the Rules of the Court and except a case from its operation because the Rules
were precisely adopted with the primary objective or enhancing fair trial and expeditious justice.

SECTION 2. IN WHAT COURTS APPLICABLE

These Rules shall apply in all the courts, EXCEPT as otherwise provided by the Supreme Court.

SECTION 3. CASES GOVERNED

ACTION
An ordinary suit in a court of justice.
One party prosecutes another for the enforcement
or protection of a right or the prevention or
redress of a wrong.
CLAIM
A right possessed by one against another.
The moment said claim is filed before a court, the
claim is converted into an action or suit

Applicability
1. Civil Action – one by which a party sues another for the enforcement or protection or a right or a
prevention or redress of a wrong.

A civil action may either be ORDINARY OS SPECIAL BOTH is governed by the rules for ordinary civil
actions, SUBJECT to the specific rules prescribed for a special civil action.

2. Criminal Action - one by which the State prosecutes a person for an act or omission punishable
by law.
3. Special Proceedings – a remedy by which a party seeks to establish a status, a right, or a
particular fact (SRP).

Classifications of Actions
B. As to Nature
ORDINARY CIVIL ACTION SPECIAL CILVIL ACTION
Governed by ordinary rules. Also governed by ordinary rules but SUBJECT to
specific rules prescribed (Rules 62 to 71)
Formal demand of one’s legal rights in a court of Special features not found in ordinary civil actions.
justice in the manner prescribed by the court or by
the law.

C. As to Object
ACTION IN REM ACTION IN PERSONAM
Directed against the THING ITSELF. Directed against PARTICULAR
PERSONS, PARTIES, And PRIVIES
& SUCCESSORS IN INFEED.
ACTION QUASI IN REM
Directed against PARTICULAR
PERSONS for the purpose of
proceeding against the
property.

D. As to Cause/ Foundation
REAL ACTION PERSONAL ACTION MIXED ACTION
Subject or issue where title, Privacy of contract. Both personal and real.
ownership, possession, interest

RULE 2. CAUSE OF ACTION

SECTION 1. ORDINARY CIVIL ACTION, DEFINED

Cause of Action is the act or omission by which a party violates a right of another.

Requisites of Right of Action:

1. The existence of a LEGAL RIGHT of the plaintiff.
2. A CORRELATIVE OBLIGATION of the defendant to respect plaintiff’s right ; and
3. An act or omission of the defendant in VIOLATION of the plaintiff’s right.

Injury is the illegal invasion of a legal right while damage is the loss, hurt, or harm which results from the
injury.
Right of action is right of a person to commence and prosecute an action to obtain the relief sought.

Requisites:
1. There must be good cause (The existence of a cause of action);
2. A compliance with all the conditions precedent to the bringing of the action; and
3. The action must be instituted by the proper party.

Cause of Action Rights of Action

Delict or wrongful act or omission committed by Remedial right or right to relief granted by law to a
the dependant in violation of primary rights of the party to institute an action against a person who
plaintiffs. has committed a delict or wrong against him right
of the plaintiff.
The reason for the action.
The formal statement of the operative facts that
gives rise to remedial rights.
A matter of procedure, creates by substantive law
and depends on the pleading file by the parties.
Not affected by affirmative defenses (fraud,
prescription, estoppels, etc).
The remedy or means afforded or the consequent
relief.
The remedial right given to a person because of
the occurrence of the alleged facts.
A matter or right and depends on substantive
regulated by law.
Affected by affirmative offenses.

Relief Remedy Subject Matter

The redress protection, award or
coercive measure which the
plaintiff prays the court to
render in his favor as
consequence of the delict
committed by the defendant.
The procedure or appropriate
legal form of relief of action
which may be availed of by the
plaintiff as the means to obtain
the desired relief.
The thing, wrongful act, contract
or property which is directed
involved in the action,
concerning which the wrong has
been done and with respect to
which the controversy has
arisen.

SECTION 3. ONE SUIT FOR A SINGLE CAUSE OF ACTION

A party may not institute more than one suit for a single cause of action

SECTION 4. SPLITTING A SINGLE CAUSE OF ACTION, EFFECT OF

Splitting of cause of action is the act of dividing a single or indivisible cause of action into several part of
claims and bringing several action thereon. It is not allowed.

Purpose:
To avoid the following:
1. Multiplicity of suits;
2. Conflicting decision; and
3. Unnecessary vexation and harassment of defendants.

Applies NOT only to complaints but also to counterclaims and cross-claims.

Remedies against Splitting a Single cause of Action

A. Motion to dismiss on the ground of:
1. Litis pendentia (Rule 16, sec. 1 ); or
2. Res judicata (Rule 16. Sec. 1)
B. An answer alleging either of the aforementioned grounds as affirmative
defense (Rule 16, Sec. 6)

Rule in Determining the Singleness of a Cause of Action

 a. General Rule: A contact embraces only one cause of action even if it contains several
stipulations.

Exception when failure to comply with one of the several stipulations in a continuing contract
constitutes total breach.

b. Exception: A contact to do several things as several times is divisible, and judgment for a single
breach of a continuing contract is NOT a bar to a suit for a subsequent breach (e.g:, promissory
note payable in several installments so long as there is no acceleration clause).
c. Exception to the Exception: All obligation which have mature at the time at the suit must be
integrated as one cause of action in one complaint, and those not separate cause of action so
included would be barred.
d. Doctrine of Anticipatory Breach: An UNQUALIFIED and POSITIVE REFUSAL to perform a
contract, though the performance thereof is not yet due, may, if the renunciation goes into the
whole contract, be treated as a complete breach which will entitle the injured party to bring his
action as once (Blossom and Co. vs. Manila Gas Corp., No. 32958, Nov. 8, 1930).

The rule against splitting of a cause of action applies only where the action is between the same
parties (Itogon Suoc Mines, Inc. vs. Sangil- ItogonWorker’s Union, G. R. No. L-24189, August 30,
1968).

SECTION 5. JOINDER OF CAUSES OF ACTION

Joinder of cause of action is purely PERMISSIVE. The plaintiff can always file separate actions for each
cause of action.

Requisites for Joinder of Causes of Action

1. The party joining the causes of action must comply with the rules on
joinder of parties;

Note: The following are the elements for a joinder of parties (Sec. 6, Rule 3);
a. A right to relief in respect to or arising out of the same transaction or series
of transactions; and
b. A common question of law or fact.

2. The joinder shall not include special civil actions or actions governed by
special rules;
3. Where the causes of action are between the same parties but pertain to
different venues or jurisdiction, jurisdiction is with the Regional Trial
Court, provided that:
a. One of the causes of action falls within the jurisdiction of the
RTC; and
b. The venue lies thereon.
4. Where the claims in the cause of action are principally for recovery of money,
the aggregate amount claimed shall be the test of jurisdiction (Totality Rule).

Totality Rule under BP 129: Where there are several claims or causes of actions between the same or
different parties, embodied in the same complaint, the amount of the demand shall be the totality of
the claims in all causes of action, irrespective of whether the causes of action arose out of the same or
different transaction.

The jurisdiction amount excludes: a) interest, b) damages of whatever kind, c) attorney’s fees, d)
litigation expenses and costs. These matters however, shall be included in determining the filling fees.
(Riano 2009, p.179)

Note: the exclusion of the term “damages of whatever kind” in determining the jurisdiction amount,
applies to cases where the damages are merely incidental thereto or consequence of the main cause of
action.

Note: We will follow the totality rule in BP 129 because it is elementary in statutory construction that in
case of conflict, substantive law prevails over procedural laws.

Splitting of Cause of Action Joinder of the Cause of Action

There is single cause of action. Contemplates several causes of action.
Prohibited. Encouraged.
It causes multiplicity of suits and double vexation It minimizes multiplicity of suits and inconvenience
on the part of the defendant. on the parties.

SECTION 6. MISJOINDER OF CAUSES OF ACTION (more than one cause of action)

Not a ground for dismissal of an action. A misjoined cause of action may be severed and proceeded with
separately by filling a motion in relation thereto. (or by initiative of the court)

There is NO SANCTION against non-joinder of separate causes of action.

PART 3. PARTIES TO CIVIL ACTION

SECTION 1. WHO MAY BE PARTIES; PLAINTIFF AND DEFENDANT

Requirements for a person to be party to a civil action:

1. He must be either:
a. A natural person; (e.g Juan dela Cruz vs. Pedro Santos)
b. A juridical person; ( e.g Juan dela Cruz vs. ABC Corporation) or
c. An entity authorized by law (e.g corporations by estoppels, partnership by estoppels- Juan
dela Cruz vs Pedro Santos, et. al. doing business under the name of XYZ Company)
2. He must have the legal capacity to sue; and
3. He must be the real party- in – interest.

One need not be a natural or a juridical person to be a party to a civil action. As long as an entity is
authorized by law to be party, such entity may sue, be sued or both (Riano, 2007, p 179)

Note: Entities authorized by law to be parties to a suit include:

1. The estate of a deceased person;
2. A political party incorporated under Act 1459 (now B.P Blg. 68, Corporation Code) ; and
3. A registered labor union (Sec. 243, PD 442, Labor Code), with respect to its property.
As to properties of the Roman Catholic Church, the Archbishop of the diocese to which they belong may
be party (Versoza vs. Fernandez, G.R No. L-25254, Nov. 22, 1926).

Lack of Legal Capacity of Sue Lack of Legal Personality To Sue

It refers to the plaintiff’s general disability to sue, The plaintiff is not the real party- in-interest.
such as an account of minority, insanity,
incompetence, lack of juridical personality or any
general disqualifications of a party.
It can be a ground for a motion to dismiss on the It can be used as a ground of the motion to dismiss
ground of lack of legal capacity to use. base on the fact that the complaint, on the face
thereof, states no cause of action.

Plaintiff- one having an interest in the matter of the action or in obtaining the relief demanded. The
term may refer to the claiming party, the counter- claimant, the cross- claimant, or the third (fourth,
etc.)- party plaintiff.

Defendant - on claiming an interest in the controversy of the subject thereof adverse to the plaintiff.
The term may also include:
1. An unwilling co-plaintiff or one who should be joined as plaintiff but refuses to give his consent
thereto (Sec. 10, Rule 3);
2. The original plaintiff becoming a defendant to original defendant’s counterclaim; and
3. One necessary to a complete determination or settlement of the questions involved therein.

SECTION 2.PARTIES IN INTEREST

Real party in-interest is the party who stands to benefited or injured by the judgment in the suit or the
party entitle to the avails of the suit.

Note: To be a real party- in-interest, the interest must be ‘real’, which is a present substantial interest as
distinguished from a mere expectancy or a future, contingent subordinate or consequential interest.

In Oposa vs. factoran (G.R. No.101083, 1993), minor represented by their parent were held as real
parties in interest to file an action to annual timber licenses issued by the state under the following
principles:
a. Inter-generational responsibility ;
b. Inter-generational justice;
c. The right of the Filipinos to a balanced and healthful ecology; and
d. Minor represent themselves and the generation to home.

The Rules of Court requires that an action must be brought in the name but not necessarily by the
real party in interest in fact the practice is for an attorney in fact to bring the action in the name of
the plaintiff (Tuason vs. Bolanos, G.R. No. L-25894, Jan.30, 1971).

Only parties to a contract may sue, however, a beneficiary of a stipulation pour autrui may demand
its fulfillment.
Classification of Parties in Interest
1. Indispensable parties in Interest-Those without whom no final determination can be had of an
action (must be joined under all conditions).
2. Necessary parties-Those who are not indispensable ought to be joined as parties if complete
relief is to be accorded as to those already parties, or for a complete determination or
settlement of the claim subject of the action (may or may not be joined).
3. Representative parties-Those acting in fiduciary capacity such as trustees, guardians, executors,
or administrators. The beneficiary shall be included in the title of the case and shall be deemed
to be the real party in interest.
4. Pro torma parties-Those who are required to be joined as co-parties in suits by or against
another party as may be provided by a applicable substantive law or procedural rule such as in
the case of spouses under Sec. 4.
5. Quasi parties-Those in which behalf a class or representative suit is brought.

Indispensable Parties Necessary Parties

Must be joined under any and all conditions,
their presence being a sine qua non for the
exercise of a judicial power.
No valid judgment if indispensable party is not
joined.
they are those with such an interest in the
controversy that a final decree would
necessarily affect their rights so that the court
cannot proceed without their presence.
Should be joined whenever possible, the
action can proceed even in their absence.
The case may be determined in court but the
judgment therein will not resolve the entire
controversy if a necessary party is not joined.
They are those whose presence is necessary to
adjudicate the whole controversy but whose
interests are so far separable that a final
decree can be made in their absence without
affecting them.

SECTION 3. REPRESENTATIVE AS PARTIES

A representative may be a trustee of an express trust, a guardian, an executor or administrator or a

party authorized by law the Rules of Court.
When the action is allowed to be prosecuted or defended by a representative or someone acting in a
fiduciary capacity, the beneficiary shall be included in the title of the case ad shall be deemed t be the
real party-in-interest.
An agent may sue or be sued without joining his principal except when the contract involves things
belonging to the principal.

SECTION 4. SPOUSES AS PARTIES

General Rule: Husband and wife shall sue or be sued jointly.

Exceptions: (Under the Family Code):
1. A spouse without just cause abandons the other or fails to comply with his or her obligations to
the family with respect to the marital, parental, or property relations.
2. A spouse of age mortgages, encumbers, alienates or otherwise disposes of his or her exclusive
property.
3. The regime of separation of property governs the property relations of the spouses. (Feria,
2001, p231)
 4. Pertains to exclusive properties.

SECTION 5. MINOR OR INCOMPETENT

Under the present rules, a suit may be brought by or against a minor or incompetent but with the
assistance of his parents or his guardian.

A person NEED NOT be judicially declared incompetent, it being sufficient that his incompetency be
ALLEGED in the corresponding pleadings.

SECTION 6. PERMISSIVE JOINDER OF PARTIES

Permissive Joinder
The rule on permissive joinder of parties is that they can be joined in a single complaint or may
themselves maintain or be sued in separate suits.(Except otherwise provided by these rules.)
Requisites: (ACoP)
1. Right to relief arises out of the same transactions;
2. There is question of law or fact common to all the plaintiffs or defendants’ and
3. Such joinder is not otherwise prescribed by the provisions of the Rules on jurisdiction and
venue.

Series of Transactions pertains to transactions connected with the same subject matter of the suit.

SECTION 7. COMPULSORY JOINDER OF INDESPENSABLE PARTIES

The indispensable party must always be included I the suit. In the absence of such party, the court
should order that the indispensable party be include. It shall not order the dismissal of the suit outright.

Only when the party order to implead the indispensable party refuses or fails to do so shall the case be
dismissed, on the ground of disobedience to the Rules or orders of the court under Sec. 3 of Rule 17.

The absence of an indispensable party renders all subsequent actuations of the court null and void for
want of the authority to act not only as to the absent parties but even as to those present.

SECTION 8. NECESSARY PARTY

Also called PROPER PARTIES – those whose presence is necessary to adjudicate the whole controversy,
but those interests are so far separable that a final decree can be made in their absence without
affecting them (Quisumbing vs. CA. G.R No. 93335, Sept. 13, 1990).
The non-inclusion o a necessary party does not prevent the court from proceeding with the action and
the judgment therein shall be without prejudice to the rights of such necessary party not impleaded.

Joint Debtor – He is an indispensable party in a suit against him but a necessary party in a suit against
his co-debtor.
Solidary Debtor – In a suit brought by a creditor against solidary debtor, the other solidary debtor is
NEITHER indispensable nor a necessary party.

SECTION 9. NON-JOINDER OF NECESSARY PARTIES TO BE PLEADED

Duty of a pleader whenever a necessary party is not joined or impleaded:
1. State the name of the necessary party if known; and
2. State why said necessary party is omitted in the pleading.

Should the court find the reason for the omission unmeritorious, it may order the inclusion of the
omitted necessary party if jurisdiction over his person may be obtained by ordering plaintiff to file an
amended complaint impleading the necessary party therein as a co-defendant.

Note: The failure to comply with the court’s order to include or join a necessary party without justifiable
cause shall be deemed a waiver of the claim against such party.

SECTION 10. UNWILLING CO-PLAINTIFF

If the consent of any party who should be joined as plaintiff cannot be obtained, he may be made a
defendant and the reason therefore shall be stated in the complaint.

SECTION 11. MISJOINDER AND NON-JOINDER OF PARTIES

A party is MISJOINED when he is made a party to the action although he should not be impleaded.
A party is NOT JOINED when he is supposed to be joined but is not impleaded in the action (Riano, 2007,
p.195).
Neither misjoinder nor non-joinder of parties is a ground for dismissal of the action.

Exception: Section 7, Rule 3 in relation to the disobedience to the rules or order of the court for the
inclusion of an indispensable party.

Note: Objections to defects in parties should be made at the earliest opportunity, i.e., the moment such
defect becomes apparent, by a MOTON TO STRIKE THE NAMES OF THE PARTIES impleaded. Objections
to misjoinder cannot be raised for the first time on appeal.

SECTION 12. CLASS SUIT

Class Suit is an action where one or more may sue for the benefit of all, implying that if the parties are
numerous and it is impracticable to bring them to court, one or more may sue for their benefit.

Note: An action does not become a class suit merely because it is designated as such in the pleadings.
Whether the suit is or is not a class suit depends upon the defending facts.

Requisites of a Class Suit:

1. Subject matter of the controversy is one of COMMON or GENERAL INTEREST to many persons;
2. The person are so NUMEROUS that it is impracticable to join them all as parties;
3. Parties bringing the class suit are SUFFICIENT IN NUMBER AND REPRESENTATIVE of the class and
can fully protect the interests of all concerned; and
4. The representative sues or defends for the benefit of all.
Note: A taxpayer’s suit or a stockholders derivative suit is in the nature of a class suit, although subject
to the other requisites of the corresponding governing law especially on the issue of locus standi
(Ragalado p. 97).

 Any party in interest shall have the right to intervene to protect his individual interest. (This is an
instance when a person may intervene as a matter of right).

Class Suit Permissive Joinder of Parties

There is one single cause of action pertaining to There are multiple causes of action separately
numerous persons. belonging to several persons.

SECTION 13. ALTERNATIVE DEFENDANTS

Where the plaintiff is uncertain against who of several person he is entitle to relief, he may join any OR
all of them in the alternative, although a right to relief against one may be inconsistent with a right to
relief against the other.

SECTION 14. UNKNOWN IDENTITY OR NAME OF DEPENDANT

Requisites:
1. There is a dependant;
2. His identity or name is unknown;
3. Fictitious name may be used because of ignorance of defendant’s true name and said ignorance
is alleged in the complaint;
4. Identifying description may be used: sued as unknown owner, heir, devisee, or other
designation;
5. Amendment to the pleading when identity or true name is discovered; and
6. Defendant is the defendant being sued, not a mere additional defendant.

Service of summons upon a defendant whose identify is unknown may be made by publication
in a newspaper of general circulation in accordance with Section 14 of Rule 14.

SECTION 15. ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT

Requisites: (TED)
1. There are two or more persons not organized as a juridical entry;
2. They enter into a transaction; and
3. A wrong or delict is committed against a third person in the course of such transaction.

Person associated in an entity without juridical personality may be sued under the name by which they
are generally or commonly known, but they cannot sue under such name.

The service of summons may be affected upon all the defendants by serving upon any of them, or upon
the person in charge of the office or place of business maintained under such name (Section 8, Rule 14).
(Relate Rules, Sec. 8 – Rule 36, Section 6

INSTANCES WHERE SUBSTITUTION OF PARTIES IS PROPER

A. Section 16. DEATH OF PARTY; DUTY OF COUNCIL

This provision applies where the claim is NOT extinguished as in case involving
property and property rights such as:
1. Recovery of real and personal property against the estate;
2. Enforcement of liens on such property; or
3. Recovery for an injury to person or property by reason of tort of delict
committed by the deceased.

In this case, the heir will be substituted for the deceased OR if no legal representative is named then the
court will order the opposing party to produce the appointment of an executor or administrator for the
state of the deceased: In case of minor, heirs, the court may appoint a guardian ad litem for them.

 The substitute defendant need not be summoned. The ORDER OF SUBSTITUTION shall be serve
upon the parties substituted for the court to acquire jurisdiction over the substitute party.
 If there is notice of death the court should await appointment or legal representative otherwise
subsequent proceedings are void (Herrera, vol. 1 p. 399).

Note: If the action does not survive (like purely personal actions of support, annulment of marriage and
legal separation), the court shall simply dismiss t he case. Substitution will not be required (Riano, 2007,
p.200).

B. SECTION 17. DEATH OR SEPARATION OF A PARTY WHO IS A PUBLIC OFFICER

Requisites:
1. Public officer is a PARTY TO AN ACTION in his official capacity;
2. During the pendency of the action he either DIES, RESIGNS, OR OTHERWISE CEASES to hold
office;
3. It is satisfactorily shown to the court by any party, within 30 days after the successor takes
office, that there is a SUBSTANTIAL NEED for continuing or maintaining the action;
4. That the successor ADOPTS OR CONTINUES OR TREATENS TO ADOPTS OR CONTINUE the
action of his predecessor; and
5. The party or officer affected has been given REASONABLE NOTICE of the application
therefore and accorded an opportunity to be heard.

C. SECTION 18. INCOMPETENCY OR INCAPACITY

In case a party becomes incompetent or incapacitated, the action survived and may be continued by
or against the incompetent or incapacitated assisted by his legal guardian or guardian ad litem, who
is his legal representative.

D. SECTION 19. TRANSFER OF INTEREST

 The transfer of interest that referred to in this section is a transfer that occurs DURING THE
PENDENCY of the section. The transfer or would not longer be the real party in interest if the transfer is
made before the commencement of the suit.

General Rule: The rule does not consider the transferee an indispensable party. Hence, the action may
proceed without the need to implead him.

Exception: With the substitution by or joinder of the transferee is ordered by court.

A transferee pendent life:
1. Stands in exactly the same position as its predecessor-in-interest, the original defendant;
and
2. Bound by the proceedings had in the case before the property was transferred to it, even if
not formally included as a dependant. (Herrera, vol 1 p.405)
The case will be dismiss if the interest of plaintiff is transferred to defendant UNLESS there
are several plaintiffs, in which case, the remaining plaintiffs can proceed with their own
cause of action.

SECTION 20. ACTION OM CONTRACTUAL MONEY CLAIMS

Requisites: (MAD)
1. The action must primarily be for recovery of money, debt, or interest
thereon;
2. The claim, subject of the action, arose from contract, express or implied;
and
3. Defendant dies before the entry of final judgment in the court in which the
action is pending.

Note: Under this section, the death of the defendant will not result in the dismissal of the action. The
deceased shall be substituted by his legal representatives in the manner provided for in Sec. 16 of Rule 3
and the action continues until the entry of final judgment.

However, execution shall not issue in favor of the winning party. The winning judgment should be filed
as a claim against the estate of the decedent without need of proving the claim.

SECTION 21. INDIGENT PARTY

Indigent is one who has no money or property sufficient and available for food, shelter, and basic
necessities. He need not be a pauper to entitle him to litigate in forma pauperis.

While the authority to litigate as an indigent party may be granted upon an ex parte application and
hearing it may be contested by the adverse party at any time before judgment is rendered.

If one is authorized to litigate as an indigent, such authority is include:

1. An exemption from the payment of docket fees, and
2. An exemption from the payment of transcript of stenographic note.
3. Preference of being calendared.

SECTION 22. NOTICE TO THE SOLICITOR GENERAL

RULE 4: VENUE OF ACTIONS
Venue is the place of trial or geographic location in which an action or proceeding should be brought.

Venue Jurisdiction
Place where the action is instituted. Power of the court to hear and
decide a case.
May be waived. Jurisdiction over the subject matter
and over the nature of the action is
conferred by law and cannot be
waived.
Procedural Substantive

May be change by a written Cannot be the subject of agreement

agreement of the parties. of the parties
Not a ground for a motu proprio Ground for a motu proprio dismissal
dismissal (except in summary
procedure)

Requisites for venue agreement to be valid:

1. In writing; and
2. Executed by the parties before filing of the action.
3. There must be exclusivity as to the selection of the venue

In the absence of qualifying or restricting words (e.g. only. Solely, exclusively in this court, in no other
court save, particularly, nowhere else but\except) venue stipulation is merely permissive and not
exclusive, meaning that the stipulation venue is in addition to the venue provided for in the rules
(Polytrade Corp. vs. Blanco, G.R. No. L-27033, 1969).

Exception when the stipulation as to venue in a passenger ticket of a vessel would be contrary to public
policy of making courts accessible to all who may have need of their service, the stipulation is void and
unenforceable (Sweet lines vs. Teves, G.R. No. 28324, May 19, 1972).

Note: When the action is no longer based on the agreement but ON THE TORTIOUS ACT of sending
collection telegram despite the fact that the obligation has already been paid, venue is no longer based
on the written stipulation but at the ELECTION OF THE PLAINTIFF as fixed by law (Herrera, 2007 Vol. 1,
p.636).

SECTION 1. VENUE OF REAL ACTION

The venue is the place where the real property or any portion thereof is located.
 If property is located at the boundaries of two places: File case is either place at
the option of the plaintiff.
 When the case involves two different places:
1. If the properties are the object of the same transaction, file it in any of the
two places; and
2. If they are subjects of two distinct transactions, separate actions should be
filed in each place unless properly joined.
SECTIONS 2. VENUE OF PERSONAL ACTIONS

Residence should be viewed or understood in its popular sense, meaning the personal, actual, or
physical habitation of a person, actual residence or place of abode (Reymond vs. Court of Appeals G.R
NO. 80380 Sept. 28,1988).

Venue of personal actions:

1. Where the PLAINTIFF or any of the principal plaintiffs resides;
2. Where the DEFFENDANT or any of the principal dependant resides; or
3. In case of a NON-RESIDENT DEFFENDANT, the action may be brought in the place where he may
be found.

Note: All the ELECTION of the PLAINTIFF.

Means of Waiving Venue:

1. Failure to object via motion to dismiss;
2. Affirmative relief sought in the court where the case is filled;
3. Affirmative defense in answer;
4. Voluntary submission to the court where the case is file; or
5. Laches.

SECTION 3. VENUE OF ORDINARY CIVIL ACTIONS AGAINST NON-RESIDENTS

1. Non-resident found in the Philippines
a. For personal actions – Where the plaintiff resides; and
b. For real actions – Where the property is located
2. Non-resident not found in the Philippines
An action may be filed only when the case involves:
a. Personal status of plaintiff – Venue: Where plaintiff resides; and
b. Any property of said defendant located in the Phil. - -Venue: Where the property or any
portion thereof is situated or found.

The Supreme Court has the power to order a change of venue to prevent a miscarriage of justice.
Note: The court may NOT motu propio dismiss a complaint on the ground of improper venue (Dacoycoy
vs. IAC; G.R. NO. 74854, April 2, 1991). An exception is provided in Section 4 of the Rule on Summary
Procedure.

SECTION 4. WHEN THE RULE NOT APPLICABLE

The rule on venue is inapplicable in cases:

1. Where a specific rule or law provides otherwise (i.e. an action for damages arising from libel); or
2. The parties have validly agreed in writing before the filing of the action on the exclusive venue
thereof (Sec. 4).

RULE 5: UNIFORM PROCEDURE IN TRIAL COURTS

 SECTION 1. UNIFORM PROCEDURE
The procedure in MTC shall be the same as in the RTC, EXCEPT:
1. Where a particular provision expressly or impliedly applies only to either of said court; or
2. In civil cases governed by the Rule on Summary Procedure.

SECTION 2. MEANING OF TERMS

Rules on Summary Procedure (Civil Cases)

Filling of verified complaint with the

MTC

Court may dismiss

Court may the case outright
summon the
defendant
If Defendant fails to answer in 10 days- The Court,
motu propio or on plaintiff’s motion may render
W/in 10 days from receipt of judgment based on facts alleged in the complaint
summons, defendant answers, w/o prejudice to Rule 9, Sec. 3 ©.
incorporating compulsory
counterclaim or crossclaim ,
and serves a copy on plaintiff. If plaintiff fails to appear in preliminary
conference, complaint may be dismissed.
Defendant entitled to decision based on his
Answer to counterclaim and counterclaim. All crossclaim dismissed.
crossclaim within 10 days.

Preliminary conference within

30 days after last answer is
filed

Win 5 days after conference, court

issues record of preliminary If sole defendant fails to appear, plaintiff is
conference entitled to judgment based on complaint and
what is proven therein.

Win 10 days from receipt of order,

submission by the parties of
affidavits and position papers

Rendition of judgment within 30

days from receipt of last affidavit
of with in 15 days after last
Prohibitedpaper
clarification Pleadings or Motions under the Rule on Summary Procedure (DaBaNa PEMP ‘D DiRTI)
 1. Motion to dismiss the complaint or to quash the complaint or information except on the ground
of:
a. Lack o jurisdiction over the subject matter, or
b. Failure to comply with proceedings section; (referral to lupon)
2. Motion for a bill of particulars;
3. Motion for a new trial, or for reconsideration of a judgment, or for reconsideration of a
judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the
court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third party complaint; and
12. Intervention

 The filling of a prohibited pleading will not suspend the period to file an answer or to appeal.
 Although a motion to dismiss is a prohibited pleading, its filing under the answer had already
been submitted does not constitute a pleading prohibited by the summary rules. What the rules
proscribe is a motion to dismiss that would stop the running of the period to file an answer and
cause undue delay (Heirs of Olivas vs. Flor, G.R. No. 78343, May 21, 1988).
 A motion to dismiss may be treated as an answer (Rosales vs. Court of Appeals, G.R. No.
137566, Feb. 28, 2001).

Note: While a motion to declare the defendant in default is prohibited by the rules on summary
procedure, the plaintiff may nevertheless file a motion to render judgment as may be warranted when
the defendant fails to file an answer.

Trial Procedure in Civil Cases

No testimonies evidence is required nor cross-examination of witnesses allowed. All that is required is
that within (10) days from receipt by the parties of the court’s pre-trial order, they shall submit:
1. The affidavits of their witnesses; and
2. Other evidence at the factual issues set forth in the pretrial order, together with their position
papers setting forth the law and the facts relied upon them.
 Judgments of inferior courts in cases governed by summary procedure are appealable to
the RTC.
- On appeal to the RTC, summary procedure no longer applies.
 The decisions of the RTC (On appeal) in civil cases under this rule, including ejectment
cases , are IMMEDIATELLY EXECUTORY without prejudice to a further appeal that may
be taken.

Note: Please refer to the special laws on the salient features of the Rules on Summary Procedure.
Katarungang Pambarangay Law (Title One, Book III RA 7160)

No complaint, petition, action, or proceeding involving any matter (BETWEEN INDIVIDUAL/NATURAL

PERSONS) within the authority of the lupon shall be filed or instituted directly in court or any other
government office for adjudication,
1. There has been CONFRONTATION BETWEEN THE PARTIES before the lupon chairman or
pangkat; and
2. That no conciliation or settlement has been reached OR unless the settlement has been
repudiated by the parties thereto.

Cases NOT covered by the Katarungang Pambarangay Law (SUBSTANTIVE Exceptions: G-POP RDP J)
1. Where one party is the government or any subdivision or instrumentality thereof;
2. Where one party is a public officer or employee, and the dispute relate to the performance of
his official functions;
3. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5,000.00;
4. Offenses where there is no private offended party (I:e. Genocide);
5. Where the dispute involves real properties located in different cities or municipalities UNLESS
the parties thereto agree to submit their differences to amicable settlement by an appropriate
lupon;
6. Dispute involving parties who actually reside in barangays of different cities or municipalities;

Except:
a. Where such barangays units adjoin each other and;
b. The parties thereto agree to admit their differences to amicable settlement by an appropriate
lupon;

7. Such other classes of disputes which the president may determine in the interest of justice; and
8. Where one of the parties juridical entry.

Note: The court in which non-criminal cases not falling within authority of the lupon filed may, at any
time before trial, motu proprio refer the case of lupon concerned for amicable settlement.

While the dispute is under mediation, conciliation, or arbitration, the prescriptive period for offenses
and cause of action under existing law shall be interrupted upon filing of the complaint with the punong
barangay. Such interruption shall NOT exceed 60 days from the time of the filing of the complaint with
the punong barangay.

The parties may go directly to court in the following instances (PROCEDURAL Exceptions: CHAS LACT)

1. Where the accused is under police custody or detention;

2. Where the person has otherwise been deprived of personal liberty calling for habeas corpus
proceeding;
3. Where the actions are coupled with provisional remedies such as preliminary injunction,
attachment, delivery of personal property, and support pendent lite;
4. Where the action may otherwise be barred by the statute of limitations;
5. Labor Disputes (Montoya vs. Escayo, G.R. No. 82211-12, March 21, 1989).
6. Action to annul judgment upon a compromise (Sanchez vs. Tupaz, G.R. No. 76690, Feb. 21,
1988).
 7. CARL disputes ; and
8. Disputes involving the tradition of indigenous cultural community.

The parties may, at any stage of the proceedings, agree in writing to have the matter is dispute decided
by arbitration by either the punong barangay or pangkat.

The settlement and arbitration agreement may be repudiated on the ground that consent is vitiated
by fraud, violence, or intimidation. Such repudiation shall be sufficient bases for the issuance of the
certification of filling a complaint in court or any government officer for adjudication (10 days to
repudiate)

Rules on Venue under the Katarungang Pambarangay Law

1. Disputes between residents of the same barangay shall be brought for settlement before lupon
of said barangay.
2. Residents of different barangays within the same city or municipality- In the barangay where
the respondent or any or the respondents reside at the election of the complainant.
3. Dispute involving real property or any interest therein-Where real property or larger portion
thereof is situated.
4. Dispute arising at the WORKPLACE where the contending parties are employed or the
INSTITUTION where such parties are enrolled for study-In the barangay where such workplace
or institution located.

Note: Please refer to the special laws on the salient features of the law and on Katarungang
pambarangay Chart.

RULE 6. KINDS OF PLEADINGS

SECTION 1. PLEADINGS DEFINED

Pleadings are the written statements of the respective claims and defenses of the parties
submitted to the court for appropriate judgment.

Purpose of pleadings: (AID)

1. To apprise the Court of the rival claims in a judicial controversy submitted for trial and
decision;
2. To indicate fairly the nature of the claims and defenses of both parties; and
3. To define the issues and form the foundation of proof to be submitted during trial as well as
advice a party to what his adversary-would rely on as a cause of action or as defense (Lianga
Luber vs. Lianga Timber, G.R. No. 38685, March 31, 1977).

Pleading Motion
Purpose: to submit a claim or defense for Purpose: To apply for an order not included
 appropriate judgment. in the judgment.
May be initiatory Cannot be initiatory as they are always made
in a case already filed in court.
Always filed before judgment. May be filed even after judgment.
Only 9 kinds of pleadings are allowed by the Any application for relief not by a pleading is
Rules. a motion.
Must be written. May be oral when made in open court or in
the course of the hearing or trial.

Note: A motion to dismiss is NOT a pleading.

HOWEVER, there are motions that actually seek judgment like a motion for judgment on pleadings (Rule
34) and motion for summary judgment (Rule 35).

SECTION 2. PLEADINGS ALLOWED

1. Complaint;
2. Counterclaim;
3. Cross-claim;
4. Third-party complaint;
5. Complaint-in-intervention;
6. Answer;
7. Reply;
8. Counter-counterclaim; and
9. Counter-Crossclaim.

SECTION 3. COMPLAINT

A complaint is a pleading alleging the plaintiff’s cause of causes of action.

It should contain a concise statement of the ultimate facts constituting the plaintiff’s cause of action, not
evidentiary facts or legal conclusions.

Ultimate facts refer to the essential facts constituting the plaintiff’s cause of action.

A fact is essential if it cannot be stricken out without living the statement of the cause of action
insufficient.

Test of sufficiency of the facts alleged in the complaint

Determine whether upon the averment of facts, a valid judgment may be property
rendered.

What are NOT Ultimate facts: (ELDA)

1. Evidentiary or immaterial facts;
2. Legal conclusions, conclusions or inferences of facts from facts not stated, or incorrect
inferences or conclusions from facts stated;
3. The details or probative matter or particulars of evidence, statements of law, inference
and arguments; and
 4. An allegation that a contract is valid or void in a mere conclusion of law.

SECTION 4. ANSWER

Answer is the pleading where the defendant sets forth his affirmative or negative defenses. May or may
not contain a counterclaim.

It may likewise be the response to a counterclaim or a cross-claim.

SECTION 5. DEFENSES

Two kinds of Defenses that may be set forth in the answer

1. Affirmative Defenses-It is an allegation of a new matter which, while hypothetically
admitting the material allegations in the pleading of the claimant, would
nevertheless prevent or bar recovery by him.

Affirmative defenses include fraud, prescription, release, payment, illegality, statute

of frauds, estoppels, former recovery, discharge in bankruptcy, and another matter
by way of confession and avoidance.

2. Negative Defenses-It refers to specific denial of the material facts or facts alleged in
the pleading of the claimant essential to his cause of action.

Insufficient denial or denial amounting to admissions

1. General denial; and
2. Denial in the form of a negative pregnant.

Negative pregnant is a denial in such form as to imply or express an admission

of the substantial fact, which apparently is controverted. It is a form of denial,
which really admits the important facts contained in the allegation to which it
relates.

While it is a denial in form, its substance actually has the effect of an admission
because of a too literal denial of the allegations sought to be denied. This arises
when the pleader merely repeats the allegations in a negative form.

SECTION 6. COUTERCLAIM

Counterclaim is any claim which a defending party may have against an opposing party.

Nature of a Counterclaim
A counterclaim is in the nature of a cross-complaint. Although it may be alleged in the answer, it is not
part of the answer. Upon its filing, the same proceedings are had as in the original complaint. For this
reason, it must be answered within ten (10) days from service.

Counterclaims may either be:

1. Compulsory; or
 2. Permissive.

SECTION 7. COMPULSORY COUNTERCLAIM

Compulsory Counterclaim is one which, being cognizable by the regular courts, arises out of or is
connected with the transaction or occurrence constituting the subject matter of the opposing party’s
claim and does not require for its adjudication the presence of third parties of who the court cannot
acquire jurisdiction.
Except when original action before the RTC, the counterclaim may be considered compulsory regardless
of any amount merely incidental to the main action.

Requisites of a compulsory counterclaim

1. It must arise out of, or be necessarily connected with, the transaction or occurrence that is the
subject matter of the opposing party’s claim;
2. It does not require for its adjudication the presence of third parties of whom the court cannot
acquire jurisdiction;
3. It must be within the jurisdiction of the court; and
4. It must be cognizable by the regular courts of justice both as to the amount and issues;
5. The defendant party has counterclaim at the time he files an answer.

Rules on the Compulsory Counterclaim

A counterclaim before the MTC must be within the jurisdiction of said court, both as to the amount and
nature thereof.

In an original action before the RTC, the counterclaim may be considered compulsory regardless of the
amount.

However, the nature of the action is always material such that unlawful detainer cannot be set up in the
RTC.

 If a counterclaim is filed in the MTC excess of its jurisdictional amount, the excess is
considered waived (Agustin vs. Bacalan. G.R. No. 46000, March 18, 1985).
 In Calo vs. Ajax Int’l (G.R. No. 22485, March 16. 1968), the remedy where a counterclaim
is beyond the jurisdiction of the MTC is to set off the claims and the file a separate
action to collect the balance.

Compulsory Counterclaim Permissive Counterclaim

One which arises out of or is necessarily
out of or is necessarily connected with the
transaction or occurrence that is the
subject matter of the opposing party’s
claim.
It does not require for its adjudication the
presence of third parties of whom the
court cannot acquire jurisdiction.
It is barred if not set up in the action.
It does not arise out of nor is it necessary
connected with the subject matter of the
opposing party’s claim.
It may require for its adjudication the
presence of third parties of whom the
court cannot acquire jurisdiction
It is NOT barred even if not set up in the
 action.
Need not be answered; no default. Must be answered, otherwise, the
defendant can be declared in default.

Note: A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in
default, principally because the issues raised in the counterclaim are deemed automatically joined the
allegations of the complaint. (Gojo vs. Goyola, G.R. No. 26768, Oct. 30, 1970).

General Rule: A compulsory counterclaim not set up in the answer I deemed barred.

Exceptions:
a. If it is counterclaim which either matured or was acquired by a party after serving his answer. In
this case, it may be pleaded by filing a supplemental answer or pleading before judgment. (Sec.
9, Rule 11)
b. When a pleader fails to set up a counterclaim through oversight, inadvertence, excusable
negligence, or when justice require, he may, by leave of court, set-up the counterclaim by
amendment of the pleadings before judgment (Sec. 10, Rule 11)
 The filing of motion to dismiss and the setting up of a compulsion counterclaim are incompatible
remedies. In the event that a defending party has a aground for dismissal and compulsory
counterclaim at the same time, he must have only one remedy. If h decides to file a motion to
dismiss, he cannot set up his counterclaim. But he opts to set up his counterclaim, he may still
plead his ground for dismissal as an affirmative defense in his answer.

SECTION 8. CROSS-CLAIM

Cross Claim is any claim by one party against a co-party arising out of the transaction or occurrence that
is the subject matter either of the original action or of a counterclaim therein.

Requirements for a Cross- Claim:

1. A claim one party against a co- party;
2. It must arise out of the subject matter of the complaint or of the counterclaim; and
3. The cross-claimant is prejudiced by the claim against him by the opposing party.

Purpose: To settle a single proceeding all the claims of the different parties in case against each other in
order to avoid multiplicity of suits (Republic vs. Parades, G.R. No. L-12546, May 20, 1960).

General Rule:
If it is not set up in the action, it is BARRED. Except:
1. When it is outside the jurisdiction of the court; or
2. If the court cannot acquire a jurisdiction over third parties whose presence is necessary of
adjudication of said cross-claim. In which case, the cross-claim is considered PERMISSIVE; or
3. Cross claim that may mature or may be acquired after service of the answer (Riano, 2007, p.
285).
 The dismissal of the complaint carries with if the dismissal or a cross-claim which is purely
defensive, but not a cross-claim seeking a affirmative relief.

Cross Claim Counterclaim 3rd Party Complaints

Against a co-party
Must arise of the transaction
that is the subject matter of the
original action of a counter claim
therein.
No permissive cross claim.
NO NEED for leave of court.
Against an opposing party. Against a person not a party to
the action.
May arise of a necessary Must be in respect of the
connected with the transaction opponents (Plaintiff) claim.
or the subject matter of the
opposing party’s claim.
Life depends on the life of the Main action dismissed, counter
main action, in which case, it is claim survives.
called a compulsory
counterclaim, or it may not, in
which case it is called a
permissive counterclaim
NO NEED for leave of court. Leave of court is NEEDED.

SECTION 9. COUNTER-COUNTERCLAIMS AND COUNTER-CROSS-CLAIMS

Counter-counterclaim is claim asserted against an original counterclaimant.

Counter-crossclaim is a claimed filed against an original cross-claimant.

SECTION 10. REPLY

REPLY is the response of plaintiff to the defendant’s answer, the function of which is to deny or allege
facts in denial or in avoidance of new matters alleged by way of defense in the answer and thereby join
or make issue as to such new matters.

Effect of New Failure to File a Reply

General Rule: Filing a reply is merely optional. New facts that were alleged in the answer are deemed
converted should a party fail to reply thereto.

Exceptions:
Reply is acquired:
1. Where the answer is based on an ACTIONABLE DOCUMENT (Sec. 8, Rule 8); and
2. To set up AFFIRMATIVE DEFENSES on the counter claim (Rosario vs. Martinez, G.R. No. L- 4473,
Sept. 30, 1952).
Note: only allegation of usury in COMPLAINT to recover usurious interest admitted, if not denied under
oath. Hence if the allegation of usury is contained in an answer, if not necessary for the plaintiff to file a
reply thereto in order to deny that allegation under oath (Regalado, p. 146).

SECTION 11. THIRD (FOURTH, ETC.) – PARTY COMPLAINT

Third –Party Complaint is a claim that a defending party may , with leave of court, file against a person
nota party to the action for contribution, indemnity, subrogation or any other relief (CISA), in respect of
his opponent’s claim. There could also be a fourth, etc., - party complaint with the same purpose and
function.
4 test to determine the propriety of a third party complaint
1. 3rd party complaint is proper if it arises out of the same transaction on which plaintiff‘s cause of
action is based.
2. 3rd part complaint is proper if although arising out of another transaction, is connected with the
plaintiff’s claim.
3. 3rd party defendant would reliable to the original plaintiff’s claim. Although the third party
defendants liability arises out of another transaction.
4. The 3rd party defendant may assert any defense which has third party has or may have against
plaintiff’s claim.

Tests to determine whether the third party complaint is in respect of plaintiff’s claim
1. When it arises out of the same transaction on which the plaintiff’s claim is based, or although
arising out of another or different transaction, is connected with the plaintiff’s claim;
2. Whether the third-party defendant would be reliable to the plaintiff or to the defendant for all
part of the plaintiff’s claim against the original defendant; and
3. Whether the third-party defendant may assert any defenses which the third-party plaintiff has
or may have to the plaintiff’s claim.

 Leave of court to file a third-party complaint maybe obtained by motion under Rule 15.
 Summons on third, fourth, etc.-party defendant must serve for the court to obtain jurisdiction
over his person, since he is not a original party.
 Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third-
party complaint regardless of the amount involved as a third-party complaint is merely auxiliary
to and is a continuation of the main action (Republic vs. Central Surety & Insurance Co., G.R. No.
L-27802, Oct. 26, 1968).
 A third part complaint is not proper I an action for declaratory relief (Commissioner of Customs
v. Cloribel, G.R. No. L- 21036, Jun 30, 1977).

Third Party Complaint Complaint in Intervention

Bring into the action a third person who was not same
originally a party.
Initiative is with the person already a party to the Initiative is with a non-party who seeks to join the
action. action.

SECTION 12. BRINGING NEW PARTIES

Distinguished from a third party complaint – A third party complaint is proper when not one of the
third-party defendants therein is a party to the action. If one or more of the defendants in a
counterclaim or cross-claim is already a party to the action then the other necessary parties may be
brought in under this section.

SECTION 13. ANSWER TO THIRD (FOURTH, ET.) –PARTY COMPLAINT

RULE 7: PARTS OF A PLEADING

SECTION 1. CAPTION
The Caption contains the following:
1. The name of the court;
2. The title of the action; and
3. The docket number if assigned.

Where to name:
1. Subsequent pleading;
2. Class suit
3. Identity/ name is unknown;
4. Entity without juridical personality;
5. Party is sued in his official capacity

SECTION 2. BODY

The Body sets forth:

1. Its designation;
2. The allegation of the party’s claim and defenses;
3. The relief prayed for; and
4. The date of the pleading.

Note: It not the caption of the pleading but the allegation therein which determine the nature of the
court and the court shall grant relief warranted by the allegations and proof even if no such relief is
prayed for (Riano, 2007, p.46).

SECTION 3. SIGNATURE AND ADDRESS

The signature of the counsel in certification (RNB):

1. That he has read the pleading;
2. That to the best of his knowledge, information of belief, the good ground to support it; and
3. It is not interposed for delay.

Note: An UNSIGNED PLEADING produces no legal effect. However, the court may, in its discretion, allow
such deficiency to be remedied if it shall appear that the same was due to inadvertence and not
intended for delay.

Disciplinary action on counsel in the following cases:

1. Deliberately filing an assigned pleading;
2. Deliberately signing a pleading in violation of the Rules;
3. Alleging scandalous or indecent matter in the pleading; or
4. Failing to promptly report a change of his address.

SECTION 4. VERIFICATION

Pleading need NOT be verified EXCEPT when otherwise provided by the law or rules.
How a pleading is verified: By an affidavit that the affiant:
1. Has read the pleading; and
2. That the allegations therein true and correct of his personal knowledge or based on authentic
documents.
 The purpose of requiring a verification is to secure an assurance that the allegations of the
petition has been made in good faith, or are true and correct, not merely speculative
(Sarmientio s. Zaratan, G.R. No. 167471, February 5, 2007).

List of pleadings that should be VERIFIED (NOT EXCUSIVE)

1. Civil complaints or initiatory pleadings asserting claims for relief (including permissive counter-
claims). (See Sec. 5, Rule 7, Rules of Civil Procedure)
2. Statement of Claim for Small Claims Cases, as well as the response thereto (See Secs. 5 & 1, Rule
for Procedure for Small Claims Cases)
3. Complaint for injunction (See Sec. 4, Rule 58, Rule of Civil Procedure)
4. Application for appointment for receiver (See Sec. 1, Rule 59, Rules of Civil Procedure)
5. Application for support pedente lite (See Sec. 1, Rule 69, Rules of Civil Procedure)
6. Petition for forcible entry of unlawful detainer, the answer thereto, and the answers to any
compulsory counter-claim and cross-claim pleaded in the answer (See Sec. 4, Rule 70, Rules of
Civil Procedure)
7. Petition for indirect content (See Sec. 4, Rule 70, Rules of Civil Procedure)
8. Petition for relief from judgment or order. (See Sec. 3, Rule 38, Rules of Civil Procedure)
9. Petition for Review from the RTC to the Supreme Court (See Sec. 2. [c], Rule 41, Rules of Civil
Procedure)
10. Petition for Review from RTC to Court to Court of Appeals (See Sec. 1, Rule 42, Rules of Civil
Procedure)
11. Petition for Review under Rule 43, from CTA and other quasi- judicial agencies to Court of
Appeals (See Sec. 5, Rule 43, rules of Civil Procedure)
12. Appeal by Ceritiorari under Rule 45, from Court of Appeals to Supreme Court (See Sec. 1, Rule
45, Rules of Civil Procedure)
13. Petition for Ceritiorari (special civil action) under Rule 64 (See Sec. 2, Rule 64, Rules of Civil
Procedure)
14. Petition for Ceritorari (special civil action) under Rule 65 (See Sec. 1, Rule 65, Rules of Civil
Procedure)
15. Petition for Prohibition under Rule 65 (See Sec. 2, Rule 65, Rules of Civil Procedure)
16. Petition for Mandamus under Rule 65 (See Sec. 3, Rule 65, Rules of Civil Procedure)
17. Petition for appointment of guardian (See Sec. 2, Rule 93, Rules of Court)
18. Petition for leave filed by a guardian to sell or encumber property of an estate (See Sec. 1, Rule
95, Rules of Court)
19. Petition for declaration of competency of a ward (See Sec. 1 , Rule 97, Rules of Court)
20. Petition for habeas corpus (See Sec. 3, Rule 102, Rules of Court)
21. Petition for change of name (See Sec. 2, Rule 103, Rules of Court)
22. Petition for voluntary judicial dissolution of a corporation (See se. 1, Rule 105, Rules of Court, see
also Sec. 119, Corporation Code)
23. Petition for cancellation or correction of entries in the civil registry under Rule 108 (See sec. 1,
Rule 108, Rules of Court)
SECTION 5. CERTIFICATION AGAINST FORUM SHOPPING

Forum Shopping consist of filing multiple suits in different courts, either simultaneously or successively,
involving the same parties, to ask the court to rule on the same or related causes and/or to grant the
same or substantially the same relief.

TEST to determine the presence of forum shopping: Whether in the two (or more) cases pending, there
is identity in terms of the following:
1. Parties or identity of interests represented (Cf. First Phil. International Bank, et al. vs. C.A., No.
115849, January 24, 1996);
2. Rights or causes of action; and
3. Relief sought.
 The certificate is to be executed by petitioner, and not by counsel, unless, the latter is
specifically authorized to do so.

Ratio: The party himself has actual knowledge or knows better than anyone else, whether he has
initiated similar actions in other courts agencies or tribunals.

Three Ways of Committing Forum Shopping:

1. Filing multiple case based on the same cause of action and with the same prayer, the previous
not having been resolved yet (litis pendentia);
2. Filing multiple cases based on the same cause of action and with the same prayer, the previous
having been resolved with penalty (res judicata);
3. Filing multiple cases based on the same cause of action but with different prayers (splitting of
cause of action, where the ground for dismissal is also lits pendentia or res judicata) (Ao-As vs.
CA, et al., G.R. No. 128464, June20, 2006)

Note: The certificate of non-forum shopping is a mandatory requirement in filing a complaint and other
initiatory pleadings asserting a claim or relief (Sec. 5, Rule 7, Rules of Court)

These initiatory pleadings include not only the original complaint but also:
1. Permissive counterclaim;
2. Cross-claim;
3. Third (fourth, etc.) – party complaint;
4. Complaint-in-intervention; and
5. Petition or application wherein the party asserts his claim for relief.

The rule does not require a certificate against forum shopping for a compulsory counterclaim because it
cannot be a subject to a separate and independent adjudication. It is NOT AN INITIATORY PLEADING
(UST vs. Surla, G.R. No. 129718, August 17, 1998).

Effect of Failure to Comply

Not curable by mere amendment of the pleading must shall be cause for the dismissal of the case,
without prejudice, unless otherwise provided, upon motion (not motu propio) and after hearing.

Effect of Submission of False Certification or Non-Compliance with the Undertakings Therein

1. Indirect contempt; and
2. Without prejudice to the filing of administrative and criminal actions against the counsel.
Effects of Willful and Deliberate Forum Shopping
1. Shall be ground of summary dismissal of the case with prejudice; and
2. Direct contempt, as well as the cause for administrative sanctions.

RULE 8: MANNER OF MAKING ALLEGATIONS IN APLEADING

SECTION 1. IN GENERAL

Every pleading shall contain in a methodical and logical from a plain, concise and direct statement of the
ultimate facts, omitting the statement of mere evidentiary facts.

Ultimate Facts refer to those which directly from the basis of the right sought to be enforced or the
defense relied upon. If the ultimate facts are NOT alleged the cause of action would be insufficient.

Evidentiary Facts refer to those which are necessary to prove the ultimate fact of which furnish
evidence of the existence of some other facts.

Test to Distinguish Conclusion of Law from Statement of Facts:

 If from the facts in evidence, the result can be reached by the process of natural reasoning
adopted in investigation of truth, it becomes an ULTIMATE FACT to be found as such.
 If, on the other hand, resort must be have to artificial process of the law in order reach a final
determination the result is a CONCLUSION OF LAW (Herrera, Vol. 1, p. 521).

SECTION 2. ALTERNATIVE CAUSES OF ACTION OR DEFENSE

A party may state as many claims or defenses as he has regardless of consistency but each must
consistent in itself (Herrera, p.525).

Facts that may be Averred Generally: (CCC LeMJO)

1. Conditions precedent (BUT there must still be an allegation that the specific condition precedent
has been complied with, otherwise it will be dismissed for lack of cause of action; (Sec.3);
2. Capacity to sue or be sued (Sec. 4);
3. Capacity to sue or be sued in a representative capacity (Sec. 4);
4. Legal existence of an organization (Sec. 4);

Note: A party desiring to raise an issue as to legal existence or capacity of any party to sue or be sued in
a representative capacity shall do so by SPECIFIC DENIAL which shall include supporting particulars
within the pleaders knowledge.

5. Malice, intent knowledge, or other condition of the mind (Sec.5);

Ratio: it is difficult to state the particulars constituting these matters.

6. Judgments of domestic or foreign courts, tribunal, courts, or officers (no need to show
jurisdiction for it is presumed (Sec. 6); and
7. Official document or act (Sec. 9).
Facts that must be Averred Particularly:
The circumstances showing fraud or mistake in all averments of fraud or mistake (Sec. 5).

SECTION 7. ACTON OR DEFENCE BASED ON DOCUMENT

Actionable Document refers to a written instrument upon which the action or defense is based.

Two permissive ways of pleading an actionable document:

1. By setting forth the substance of such document in the pleading and attaching said document
thereto as an exhibit (contents of the document annexed are controlling, in case of variance in
the substance of the document set forth in the pleading and in the document attached); or
2. By setting forth set document verbatim in the pleading.

SECTION 8. HOW TO CONTENT SUCH DOCUMENT

How to Contest an Actionable Document

1. By specific denial under oath; AND
2. By setting forth what is claimed to be the facts.

Where the actionable document is properly alleged, the failure to specifically deny under oath the
same results in:
1. The admission of the genuineness and due execution of said document, EXCEPT tan an oath is
not required:
a. When the adverse party was not a party to the instrument; OR
b. When compliance with an order for an inspection was refused.
2. The document need not formally offered in evidence.

Genuineness means that instrument is:

1. Not spurious, counterfelt, or of different import on its face from the one executed by the party;
or
2. That the party whose signature it bears has signed it; and
3. That the time it was signed, it was in words and figures exactly as set out in the pleadings.

Due Execution means that the document was:

1. Signed voluntarily and knowingly by the party whose signature appears thereon;
2. That if signed by somebody else such representative had the authority to do so; and
3. That it was dully delivered, and that the formality was complied with. (Hibberd vs. Rhode, G.R
No. 8418, Dec. 9, 1915)

Specific facts which are deemed admitted (Genuiness and Due Execution Of Document)
1. The party whose signature by it bears;
2. If signed by another, it was signed for him and with his authority.
3. At the time it was signed, it was in words and figures exactly as set out in pleading of the party
relying upon it;
4. The document was delivered;
5. The formal requisites of the law, such as seal, acknowledgement or revenue stamp with lacks
are waived by it.
Cases where implied admission is waived:
1. Where the pleader, presented witnesses to prove genuineness and due execution and the
adversary proved, without objection, the contrary.
2. Where the fails to object to evidence controverting the due execution.

The following DEFENSES, not being inconsistent with the genuineness and the due execution, are NOT
WAIVED despite failure to specifically deny under oath;
1. Fraud;
2. Estoppel;
3. Want or illegality of consideration;
4. Mistake;
5. Payment;
6. Minority or imbecility;
7. Duress;
8. Statute of limitations; and
9. Compromise.

BUT the following defenses are WAIVED:

1. Forgery in the signature;
2. Unauthorized signature, as in the case of an agent signing for his principal;
3. The corporation has not authorized under its charter to signed the instrument;
4. Want of delivery; or
5. At the time the document was signed, it was not in words and figures exactly as set out in the
pleading.
Cases where the requirement of an oath does not apply:
1. Where the adverse party does not appear to be a party to the instrument;
2. When the compliance with an order for an inspection of the original, instrument is refused;
3. When the document to be denied is not classified as an actionable document but merely as
evidentiary matter.

Note: Failure to specifically deny under oath the genuineness and due execution of an actionable
document generally implies an admission of the same on the other party. However, such IMPLIED
ADMISSION IS DEEMED WAIVED if the party asserting the same has allowed the adverse party to present
evidence contrary to the contents of such document without objection (Central Surety vs. Hodges, G.R
No. 12730, August 22, 1960).

SECTION 9. OFFICIAL DOCUMENT OR ACT

SECTION 10. SPECIFIC DENIAL

Three Ways of Making a Specific Denial

1. Specific Absolute Denial
By specifically denying the averment an, whenever practicable, setting forth the substance of
the matters relied upon for such denial;

2. Partial Specific Denial

Part admission and part denial; and
 3. Disavowal of Knowledge
By an allegation of lack of knowledge or information sufficient to form a belief as to the truth or
falsity of the averment in the opposing party’s pleading.

 This does not apply where the fact as to which want of knowledge is asserted is, to the
knowledge of the court, so plain and necessarily within the defendant’s knowledge that
his averment of ignorance must be probably untrue.
 A Negative Pregnant is a form of denial which at the same time involves as affirmative
implication favorable to opposing party. It is in effect, an admission of the averment to
which it is directed. it is sais to be denial pregnant with an admission of the substantial
facts in the pleading responded to.

SECTION 11. ALLEGATION NOT SPECIFICALLY DENIED DEEMD ADMITTED

General Rule: Allegations NOT specifically denied are deemed admitted.

Exceptions:
1. Allegations as to the amount of unliquidated damages;
2. Allegations immaterial to the cause of action; and
3. Conclusion of law.

Note: Admissions may be withdrawn by amendments. The original pleadings are superseded by the
amendment pleading (Insular Veneer, Inc. vs. Plan, No. L- 40155, Spt. 10, 1976)

SECTIONS 12. STRIKING OUT OF PLEADING OR MATTER CONTANED THEREIN

Allegations of merely evidentiary or immaterial facts may be stricken out on motion.

RULE 9. EFFECT OF FAILURE TO PLEAD

SECTION 1. DEFENSES AND OBJECTIONS NOT PLEADED

General Rule: Defenses and objections not raised in a MOTION TO DISMISS or in the ANSWER are
deemed waived.

Exceptions:
1. Lack of jurisdiction over the subject matter;
2. Litis pendentia;
3. Res judicata; and
4. Prescription of the action.

 The court shall dismiss the claim if any of forgoing grounds appears from the pleadings or the
evidence on record.
 These defenses may be raised at any stage of the proceeding even for the first time on appeal
EXCEPT that lack of jurisdiction over the subject matter may be barred by laches (Tijam vs.
Sibonghanoy, G.R. No. L-21450, April 15, 1968).
SECTION 2. COMPULSORY COUNTERCLAIM, OR CROSS-CLAIM, NOT SET-UP BARRED

An Amendment Answer is proper if the counterclaim or cross-claim already existed at the time the
original answer was filed but due to oversight, inadvertence, or excusable, neglect, if was not set up.

A Supplemental Answer is proper if the counterclaim or cross claim matures or is acquired after the
answer is filed.

SECTION 3. DEFAULT; DECLARATION OF DEFAULT

It is the failure of the defendant to answer within the proper period. It is neither his failure to appear nor
failure to present evidence.

Two Stages of Default:

1. Declaration or Order of Default; and
2. Rendition of Judgment by default.

Order of Default Judgment by Default

Issued by the court, on plaintiff’s
motion for failure of the
defendant to file his responsive
pleading seasonably.
Interlocutory - Not appealable.
Example- parte presentation of
evidence is optional.
Rendered by the court following
a default order or after it
received, ex parte, plaintiff’s
evidence.
Final- Appealable.

General Rule: Material government in a complaint shall be deemed admitted when specifically
admitted.

Exceptions:
1. Amount of unliquidated;
2. Immaterial averments;
3. Evidentiary matter;
4. Conclusions of facts/law.
5.
The court may take cognizance of the issue of laches if the same is not empleaded. Being a defense in
equity.

General Rule: If the defendant is declared in default for failure to file an answer, he is deemed admitted
the allegations in the complaint. “The court should deem to have granted such relief as his pleading may
warrant.”

Effect: Same as the summary rules and judgment on pleading in the court can grant the relief without
presentation of evidence.

SECTION 3 – It is discretionary upon the court to require presentation of evidence.

The defendant cannot be declared in default when motion to dismiss bill of particulars is pending-
interrupts the pending-interrupts the running of prescriptive period.
Except when the motion dos not comply with Rule 16 (did not contain notice of time and place of
hearing and the motion was denied.

Default in Ordinary Procedure

After the lapse of time to Motion to

file an answer the plaintiff denied;Defendant
may move to declare the allowed to file an
defendant in default. answer.

Defendant answers.
Motion granted: Court issues
order of default and renders
judgment, or require plaintiff
to submit evidence ex parte

Before judgment by Court maintains order

default is rendered, of default.
1. Move to set aside
order of default
upon showing of:
FAME and that
he has a
meritorious
defense;
2. Avail of Rule 65 in
proper cases.

Presentation of plaintiff’s
evidence ex parte
Court sets aside order of
default and defendant is
allowed to file an answer. If plaintiff proves his If plaintiff fails to prove his
allegations judgment by allegations, case is dismissed.
default.

Case set or pre-trial

Limitations of a Default Judgment
1. Do not exceed the amount prayed;
2. Not be different in kind from that prayed for in the complaint;
3. Not award of damages.

Default of failure to appear during trial a grater amount that prayed I the complaint/or a different
nature of relief may be awarded so long as the same are proved.

Note: Failure of the defendant to attend the pre-trial is a cause to the court to order the plaintiff to
present his evidence ex parte and for the court to render judgment on the basis thereof under the Rules.
This consequence is NOT to be called a declaration of default (Sec. 5, Rule 18).

General Rule: A default order and consequently a default judgment are triggered by the failure of the
depending party to file the required answer (Sec. 3, Rule 9).

Exceptions: A judgment by default may be rendered in the following cases despite an answer having
been filed:
1. If a party refuses to obey an order requiring hi to comply with the various modes of discovery
(Sec. 3 [c], Rule 29); or
2. Is a party of officer or managing agent of a party will fully fails to appear before the officer who
is to take his deposition (Sec. 5, Rule 29) (Riano, 2007, p. 297).

Elements of a Valid Declaration of Default:

1. That court must have validly AQUIRED JURISDICTION over the person of the defendant either by
service of summons or voluntary appearance.
2. The defendant fails TO ANSWER within the time allowed therefore;
3. There must be MOTION to declare the defendant in default;
4. There must be NOTICE to the defendant by serving upon him a copy of such motion;
5. There must be a PROOF of such failure to answer; and
6. There must a HEARING to declare the defendant in default.

Where no Defaults are Allowed: (ADLeS)

1. Annulment of marriage;
2. Declaration of nullity of marriage;
3. Legal separation;
4. Special civil actions of ceritori prohibition and mandamus where comment instead of an answer
is required to be filed;
5. Summary procedure.

May a defendant be declared in default while a motion to dismiss or a motion for bill f particulars
remains pending and undisposed of?
No because the filing for a motion for bill for particulars interrupts the running of the period to answer.
It will against from the moment defendant received the order denying the order to dismiss or for a bill of
particulars (Feria, 2001, p. 155).

Effects of an Order of Default

1. The court shall proceed to render judgment granting the claimant such relief as his pending
warrant; OR in its discretion
 2. Shall require the claimant to submit evidence;
3. Loss of standing in court of the defaulting party (Caville vs. Florendo G. R No. 73039, Oct. 9,
1987); and
4. Defendant is still entitled to notice of subsequent proceedings.

Relief from Order of Default: Motion to Lift Order of Default

Requisites:
1. Verified motion showing fraud, accident, mistake or excusable negligence; and
2. Meritorious defenses.

In such a case, the order of default may be set aside on such terms and conditions as the judge may
impose in the interest of justice. (Rule 9, Sec. 3 (b) Rules of Court).

Rights of Party in default: Entitled no notice of –

1. Motion to declare him in default;
2. Order declaring him in default;
3. Subsequent proceedings; and
4. Service of final orders and judgments.

Note: Judges are admonished against issuing precipitate orders of default as these have the effect of
denying a litigant the chance to be heard and in order to prevent needless litigations in the appellate
courts. While there are instances when a party may properly be defaulted, this should be the
EXCEPTION RATHER THAN THE RULE (Tropical Homes, Inc. vs Villauz, G.R No. 40628, Feb. 24, 1989).

Partial Default
1. The pleading asserting a claim states a common cause against several defending parties;
2. Some of the defending parties answer and the others fail to do so; and
3. The answer interposes a common defense.

Effect of Partial Default

The court will try the case against ALL defendants upon the answer of some except where the defense is
personal to the one who answered in which case, it will not benefit those who did not answer.

The Extent of Relief to be awarded in a Judgment by Default shall not:

1. Exceed the amount frayed for; NOR
2. Be different in kind from that prayed for; NOR
3. Award unliquidated damages.
Remedies from Judgment by Default (flow chart)

Judgment by default

Motion for new trial or

reconsideration at any time after
service of judgment by default
and within 15 (30) days
therefrom

Failure to file motion for new trial

/ Denial of said motion

Perfect appeal from said

judgment by default within the
balance of said 15 (30) – day
period

Failure to appeal without

defendant’s fault

Petition for relief from judgment

within 60 days from notice of the
judgment but within 6 months
from entry thereof

Annulment of Judgment under Rule

47
RULE 10. AMENDED AND SUPPLEMENTAL PLEADINGS

SECTION 1. AMENDED IN GENERAL

Pleadings may be amended by:

1. Adding of allegation of party;
2. Adding the name and substitution of a party;
3. Striking out an allegation of party;
4. Striking out the name of party;
5. Correcting a mistake in the name of a party; and
6. Correcting a mistake or inadequate allegation or description in any other resrect.

Types of Amendments:
1. Amendment as a matter of right-the party has the unconditional right to amend his pleading.
The court has no right to prevent him from amending. The opposite party has no right to oppose
the amendment (If the court refused to admit the amended pleading as a matter of right, it is
correctible by mandamus.

Except: Formal Amendments-even after answer when the defendant has not pleading filed an answer 10
days or the defendant filed an motion to dismiss after the defendant filed an answer.

2. Amendment as a matter of judicial description-The court may or may not allow the
amendment. The other party has the right to oppose ( Amendment by leave of court).

SECTION 2. AMENDMENT AS A MATTER OF RIGHT

Amendment is a matter of right before a responsive pleading is SERVED, or in case of a Reply, within 10
days after it was SERVED.

Such right can only be exercised ONCE. Subsequent amendment should be made only by leave of court
even if the other party has not yet serve a responsive pleading.

Note: A motion to dismiss is not a responsive pleading. As such, an amendment AFTER the denial of a
motion to dismiss is still considered as a matter of right. Hence, it may be done without leave of court.

 If new causes of action are alleged in the amended complaint filed before the defendant
has appeared in court, another summons must be serve on the defendant with the
amended complaint (Gumabay vs. Baralin, G.R. No. 30683, May, 31, 1977).

NON-EXISTINT cause action IMPERFECT cause of action

-There is no delict or wrong -delict or wrong is committed, but cause of action
-not curable by amendment is incomplete.
-curable by amendment
Instances When Amendment is a Matter of Right:
1. Amendment of complaint before an answer is filed;
2. Amendment of answer before a reply is filed or before the period for filling a reply expires;
3. Amendment of reply any time within 10 days after it served; and
4. Formal amendment.

LIMITATION TO THE LIBERAL POLICY IN AMENDMENTS TO PLEADING

1. When the amendment is to delay the action
2. When amendment is for the purpose of making the complaint confer jurisdiction upon the
court
3. Is for the purpose of curing a premature or non-existent cause of action

#2. ONLY discretionary

When such amendment do not result in substantial injury to the adverse party.
RULES:
a. If the amendment introduces a new and different cause of action, then the prescriptive
period is deemed interrupted upon the filing of the amended complaint.
b. When the amendment has not altered or change the original action, no different cause
of action is introduced in the amendment complaint then the interruption of the
prescription period retroacts the date on filing of the original complaint.

GENERAL RULES: A defendant during the trial is not allowed to prove a defense that is not missed in the
pleadings
-The court has no jurisdiction over the issue.

Except-When issues raised in the pleadings are raise in the pleadings are tried with empress or implied
consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.

SECTION 3. AQMENDMENTS BY LEAVE OR COURT

Leave of court is required:

1. If the amendment is substantial; and
2. A responsive pleading has already been served.

Requisites:
1. There must be a motion filed in the court;
2. Notice to the adverse party; and
3. Opportunity to be heard afforded to the adverse party.

Instances when amendment by leave of court may NOT BE ALLOWED:

1. When the cause of action defense or theory of the case is changed;
2. Amendment is intended to confer jurisdiction to the court;
3. Amendment to cure a premature or non-existing cause of action; and
4. Amendment for purposes to delay.

SECTION 4. FORMAL AMENDMENTS

SECTION 5. AMENDMENT TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVEDENCE

When issues NOT RAISED in the pleading are tried with the express or implied consent of parties:
1. They shall be treated as if raised in the pleadings;
2. Pleadings may be amended to conform to the evidence; and
3. Failure to amend does not affect the result of the trial of this issue.

SECTION 6. SUPPLEMENTARY PLEADINGS

Supplementary pleadings-those which aver facts occurring after the filling of the original pleadings and
which are material to the mature claims and\or defenses therein alleged (Herrera vol. 1 p. 603).

 The cause of action stated in the supplemental complaint must be the same as that
stated in original complaint. Otherwise, the court should not admit the supplemental
complaint (Asset privatization Trust vs. G.R. No. 121171, Dec. 29, 1998).

Amended pleading Supplemental pleading

Refer to facts existing AT THE TIME of the
commencement of the action.
Takes the place of the original pleading.
Can be made as a matter of right as when
no responsive pleading has not yet been
filed.
When an amended pleading is filed, a new
copy of the entire pleading must be filed.
-could be matter of right or discretion.
Refers to facts arising AFTER THE FILING of
the criminal pleading.
Taken does not together with the original
pleading.
Always with leave of court.
A supplemental pleading does not require
the filing of a new copy of the entire
pleading.

SECTION 7. FILING OF AMENDED PLEADING

An amendment which merely supplements and amplifies facts originally alleged in the complaint relates
back to the date of the commencement of the action and is not barred by the Statute of Limitations
which expired after service of the original complaint (Verzos. Vs. CA, G.R. No. 119511-13, Nov. 24, 1998).

SECTION 8. EFFECT OF THE AMENDE PLEADING

Effect of amended pleading

1. An amended pleading supersedes pleading does it amends;
2. Admissions in the superseded can still be received in evidence in the pleader;
3. Claims or defenses alleged therein but not incorporated or reiterated in the pleading
are deemed waived.

RULE 11. HEN TO FLE RESPONSIVE PLEADINGS

SECTION 1. ANSWER TO THE COMPLAINT

SECTION 2. ANSWER O A DEFENDANT FOREIGN PRIVATE JURIDICAL ENTITY

Answer to a complaint
1. Within 15 days after service of summons, UNLESS a different period is fixed by the Court;
2. In case the defendant is foreign private juridical entity:
a. If it ahs a resident agent – Within 15 days after service of summons to him;
b. If it has no resident agent, but it has an agent or officer in the Philippines – Within 15 days
after service of summons to said agent or officer;
c. If it has no resident agent nor agent nor officer- in which case service of summons is to be
made in the proper government office (now the SEC) which will then send a copy thereof by
registered mail within 10 days to the home office of the foreign private corporation – within
30 days after receipt of summons by the home office of the foreign private entity.
3. In case of service of summons by publication – Within the time specified in the order granting
leave to serve summons by publication, which shall NOT be less than 60 days after notice (Rule
14,Sec. 15); and
4. In case of a non-resident defendant on whom extraterritorial service of summons is made, the
period to answer should be at least 60 days.
 The court may extend the time to file the pleading BUT may NOT shorten them. (Except:
in Quo Warranto proceedings)

SECTION 3. ANSWER TO AMMENDED COMPLAINT

1. If the filing of an amended complaint is a matter of right – Within 15 days from service of the
amended complaint.
2. If the filing of the amended complaint is NOT a matter of right – Within 10 days counted from
notice of the court order admitting the same.
 The Rule shall apply the answer to an amendment counterclaim, amendment cross-
claim, amendment third (fourth, etc.-party complaint, and amendment complaint-in-
intervention).
 If NO NEW ANSWER IS FILED, answer to original pleading shall be deemed as answer to
the amendment pleading.

SECTION 4. ANSWER TO COUNTERCLAIM OR CROO-CLAIM

A counterclaim or cross-claim must be answered within 10 days from service.

SECTION 5. ANSWER TO THIERD (FOURTH, ETC.)-PARTY COMPLAINT

The third party defendant is served with summons just like the original defendant. Hence, he also has
15, 30, or 60 days from service of summons, as the case may be, to file his answer.

SECTION 6. REPLY

A reply may de filed within 10 days from service of the pleading responded to.
SECTION 7. ANSWER TO SUPPLAMENTAL COMPLAINT

Answer to supplemental complaint must be filed within 10 days from notice of the order admitting the
same unless a different period is fixed with the court.
SECTION 8. EXISTING COUNTERCLAIM OR CROSS-CLAIM

SECTION 9. COUNTERCLAIM OR CROSS-CLAIM ARISING AFTER ANSWER

SECTION 10. OMITTED COUNTERCLAIM OR CROSS-CLAIM

Counterclaim or cross-claims omitted through oversight, inadvertence, or excusable, neglect or when

justice requires may be set up by amendment BEFORE JUDGMENT LEAVE OF COURT IS NECESSARY.

SECTION 11. EXTENTION OF TIME TO PLEAD

Requisites:
1. There must be a motion;
2. With service of such motion to the party; and
3. On such term may be just.

RULE 12. BILL OF PARTICULARS

SECTION 1. WHEN APPLIED FOR; PURPOSE

Bill of Particulars is a more definite statement of any matter which is not averred with sufficient
definiteness of particularity.

Purpose: To aid in the preparation of a responding pleading.

 An action cannot be dismissed on the ground that the complaint is vague or indefinite. The
remedy of the defendant is to remove for a bill of particulars or avail of the proper mode of
discovery (Galeon vs. Galeon, G.R o. L-30380, Feb, 28, 1973).

The motion for bill of particulars shall be filed before responding for a pleading. Hence, it must be filed
within the period granted by the Rules (Rule 11) for the filing of a responsive pleading.

The Motion shall point out:

1. The defects complaint of;
2. The paragraph wherein they are contained; and
3. The details desired.

 The motion must comply with the requirements for motion under Sec. 4, 5 and 6 of Rule 15.
Otherwise the motion will not suspend the period to answer (Filipino Fabricator vs. Magsino,
G.R. No. 47574, Jan. 29, 1988).

Note: A motion for bill of particulars is not directed only to a complaint. It is a motion that APPLIES TO
ANY PEADING which in the perception of the movant contains ambiguous allegations (Riano, 2007,
p.256).
SECTON 2. ACTION OF COURT

The court may either:

1. Deny ;
2. Grant it outright; or
3. Allow the parties the opportunity to be heard.

SECTION 3. COMPLIENCE WITH OTHERS

Period to comply wit order granting the motion: Ten (10) day from notice of order unless a different
period is fixed by the court.

The Bill of Particulars may be filed either in a separate or in an amendment pleading, serving a copy
thereof on the adverse party.

SECTION 4. EFFECT OF NON-COMPLIANCE

Effect of Non-Compliance:
1. If the Order is not obeyed or in case of insufficient compliance therewith, the court:
a. May order the striking out of the pleading or the portion thereof to which the order is
directed; or
b. Make such order as I may deem just.
2. If the plaintiff fails to obey, his complaint may be dismissed with prejudice UNLESS otherwise
ordered by the court (Rule12, Section 4; Rule 17, Section 3);
3. If defendant fails to obey; his answer be stricken off and his counterclaim dismissed, and he will
be declared in default upon motion of the plaintiff (Rule 12, Section 4; Rule 17, Section 4; Rule 9,
Section 3).

SECTION 5. STAY OF PERIOD TO FILE RESPONSIVE PLEADING

Effects of Motion
1. If the motion is granted, in whole or in part, the movant can wait until the bill of particulars is
served on him by the opposing party and then he will have the balance of the reglementary
period within which to file his responsive pleading; and
2. If his motion is denied, he will still have such balance of the reglementary period to file his
responsive pleading, counted from service of the order denying his motion.

Note: In either case, he shall have not less than 5 days to file his responsive pleading.

SECTION 6. BILL A PART OF PLEADING

A Bill of Particulars become part of the pleading for which is intended.

RULE 13. FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

Note: The Rule is not arranged per section but per topic.

SECTION 1. COVERAGE

SECTION 2. FLING AND SERVICE, DEFINED

Notice given to a party who is dolly represented by counsel is a nullity, unless service thereof on the
party himself was ordered by the court of the technical defect was waived.

Where party is represented by more than one counsel of record, service of notice on any of the latter is
sufficient.

SECTION 4. PAPERS REQUIRED TO BE FILED AND SERVED: (PAMNOJ-DORS)

1. Pleading subsequent to the complaint;
2. Appearance;
3. Written motion;
4. Notice;
5. Order;
6. Judgment;
7. Demand;
8. Offer of Judgment;
9. Resolution; or
10. Similar papers.

Filling is an act of presenting the pleading or other paper to the clerk of court.

SECTION 3. MANNER OF FILING

1. Personal service by presenting the original copies thereof, plainly indicated as such to the clerk
of court; or
2. Registered mail.

Filing by mail should be through the REGISTRY SERVICE which is made by deposit of the pleading in the
post office, and not through the other means of transmission.

 If a private carrier is availed of by the party, the date of actual receipt by the court of such
pleading and not the date of delivery to the private carrier, is deemed to be the date of the
filling of the pleading(Benguet Electric Cooperative, Inc. vs. NLRC, G.R. No. 89070, May 18,
1992).

SECTION 12. PROOF OF FILING

Filing is proved by its existence in the record of the case.

1. If filed personality: Proved by the written or stamped acknowledgement of its filing by the clerk
of court on a copy of the same; or
 2. If filed by registered mail: Prove by the registered receipt AND the affidavit of the person who
did the mailing with a full statement of:
a. The date and place of depositing the mail in the post office in a sealed envelope addressed
to the court;
b. With postage fully paid;
c. With instructions to the post maker to return the mail to the sender after 10 days if
undelivered.

Service is the act of providing a party with a copy of the pleading or paper concerned.

Service upon the Party Himself

1. When it is doubtful who the attorney of such party;
2. When he cannot be located;
3. When the party is directed to do something personally, as when is ordered to show cause.

When Service Does not Bind the Client

1. Where the lawyer is in bad faith for gross negligence;
2. Where he deliberately prejudiced his client.

SECTION 5. MODES OF SERVICE

1. Personal Service (Section 6)

a. Delivering personally a copy to the party, who is not represented by a counsel; or
b. Leaving a copy in counsel’s office with his clerk or with a person having charge therefore; or
c. Leaving the copy between 8 a.m and 6 p.m at the party’s or counsel’s residence, if known,
with a person of sufficient age and discretion then residing therein – If no person is found in
his office, or if his office in unknown, or if he has no office.
2. Service By Mail (Section 70)
If no registry service is available in the locality, or either sender or addressee, service may be
done by ordinary mail (Bank of P.I vs. Far East Molasses Corp., G.R. No. 89125, July 22, 1991).
Registered mail- The date of mailing is the date of filing.
The sengerial filing- considered as personal filing and the pleading is not deemed filed until it is
receive by the court itself; also in ordinary mail.

3. Substituted Service (Section 8)

By delivery of the copy to the clerk of court with proof of failure of both personal and service
mail.
4. Contractual Receipt
The party relying has the burden that there was compliance.

SECTION 20. VOLUNTARY APPEARANCE

Any form of appearance in court, by the defendant, by his agent authorize to do so, or by attorney, is
equivalent to service of summons EXCEPT where such appearance is precisely to object to the
jurisdiction of the court over the person of the defendant.
 Inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person
the defendant shall NOT be deemed a voluntary appearance.
RULE 15. MOTIONS

Motion is an application for relief other than by pleading. A motion is not a pleading.

Kinds of Motions
1. Motion EX PARTE is made without the presence or a notification to the other party because the
question generally presented is not debatable (i.e Motion for extension of time to file pleadings).
2. Motion of COURSE is where the movant is entitled to the relief or remedy sought as a matter of
discretion in the part of the court.
3. LITIGATED Motion is the one made with notice to the adverse party to give an opportunity to
oppose (i.e Motion to dismiss).
4. SPECIAL Motion is a motion addressed to the discretion of the court.

General Rule: A motion cannot pray for judgment.

Exceptions:
1. Motion for judgment in the pleadings;
2. Motion for summary judgment in the pleading; and
3. Motion on judgment on demurrer to evidence.

SECTION 2. MOTION MUST BE IN WRITING

General Rule: Motion must be in writing.

Exceptions: Those made in OPEN COURT or in the COURSE OF HEARING or TRIAL.

SECTION 3. CONTENTS

Contents of the Motion:

1. The relief sought to be obtained;
2. The ground upon which it is based; and
3. If requires by the Rules or necessary to prove facts alleged therein, shall be accompanied by
supporting affidavits and other papers.

Requisites of a Motion: (Not made in open court or in the course of a hearing or trial):
1. It must be in WRITING;
2. HEARING OF MOTION set by the applicant;
3. NOTICE OF HEARING shall be addressed to all parties concerned. Date of hearing must not be
later than 10 days from the filing of the motion(Sec.5);
4. Motion and notice of hearing must be served at least 3 DAYS BEFORE THE DATE OF HEARING
(THRE DAY NOTICE RULE); and
5. PROOF OF NOTICE (Sec. 6).

Exceptions to the Three Day Exception Rule:

1. Ex-parte motion
2. Urgent motions;
3. Motions agreed upon by the parties to be heard on shorter notice or jointly submitted by the
parties; and
 4. Motions for summary judgment which must be served at least 10 days before its hearing.

Note: Any motion does not comply with Section 4, 5 and 6 of the rule (Requirements 4 and 5) is a
mere SCRAP OR PAPER.
 It does not interrupt the reglementary period for filing of the requisite pleading.

SECTION 7. MOTION DAY

It is held on a Friday afternoon or if a Friday is a non-working day in the afternoon of the next
working day.

Note: no motion day in the Supreme Court.

SECTION 8. OMNIBUS SECTION

Omnibus Motion Rule-motion attacking a pleading, order, judgment or proceeding shall include
all objections then available. Objections not included shall be deemed waived except the
defenses referred in Section 1, Rule 19. Lack of jurisdiction over the matter is pendentia Res
adjudicata prescription.
-there must be actual notice to be heard.

SECTION 9. MOTION FOR LEAVE

SECTION 10. FORM

RULE 16. MOTION TO DISMISS

A Motion to Dismiss is NOT IS NOT a responsive pleading. It is not a pleading at all.

It is subject to omnibus motion rule since it is a motion that attacks a pleading. Hence, it must raise all
objections available at the time of the filing thereof.

However, the following grounds are NOT DEEMED WAIVED:

1. Lack of jurisdiction over the subject matter;
2. Litis pendentia;
3. Res judicata; and
4. Prescription (Sec. 1 Rule 19).

General rule: A court may not motu proprio dismiss a case unless motions to that affect a filed by a
party thereto.

Exceptions:
1. Those cases where the court may dismiss a case motu proprio (Sec. 1 Rule 19);
2. Sec. 3, rule 17 (Failure to prosecute); and
3. Rule on summary procedure (Section 4., 1991, Revised Rule Summary Procedure).

Motion to Dismiss Under Rule 16 Motion to Dismiss Under Rule 33 (Demurrer


Grounded on preliminary objections.
May be filed by any defending party against
whom claim is asserted in the action.
Should be filed within the time for but prior to
the filing of the answer of the defending party
to the pleading asserting the claim against
him.
If denied, defendant must file an answer, or
else he may be declared in default. If granted,
plaintiff may appeal or if subsequent is not
barred, he may re-file the case.
to Evidence)
Base on insufficiency of evidence.
May be filed only by the defendant against the
complaint of the plaintiff.
May be filed only after the plaintiff has
completed the presentation of evidence.
If denied, defendant may present evidence. If
granted, plaintiff appeal and the Order of the
dismissal is reversed, the defendant loses his
right to present evidence.

PRINCIPLES ON JURISDICTION
1. Jurisdiction over the subject matter is determined by the allegations of the complaint.
2. When the defendant files a motion to dismiss on the ground that the court has no
jurisdiction over the subject matter, the defendant hypothetically admits all the allegations
in the complaint to be true. The defendant in the meantime is not allowed to present
evidence that the court has no Jurisdiction. Everything must be decided on the face of the
complaint only.
3. Jurisdiction over the subject matter, once acquired by the court upon the filing of the
complaint, the court retains jurisdiction over the case until the case is terminated, any
subsequent amendment of the law will no longer deprive the court of its jurisdiction.
4. Lack of jurisdiction, over the subject matter may be raised in the answer, course of trial, of
the judgment is first time on appeal.

Types of Dismissal of Action

1. Motion to dismiss before answer under Rule 1;
2. Motion to dismiss under Rule 17;
 Upon notice by plaintiff;
 Upon motion by plaintiff; or
 Due to fault of plaintiff.
3. Motion to dismiss called a demurrer to evidence after plaintiff has completed the
presentation of his evidence under Rule 33; and
4. Dismissal of an appeal.

SECTION 1. GROUNDS (D-SILL-RPF-CUN)

1. No jurisdiction over the person of the defending party do not incorporate any other
grounds- NO WAIVER
2. No jurisdiction over the subject matter of the claim; under hypothetical admission;
3. Improper venue;
4. No legal capacity to sue;
5. Litis pendentia; auter accion tendent
6. Res judicata;
7. Prescription;
8. Failure to state a cause of action;
9. Claim or demand has been paid, waived, abandoned, or otherwise extinguished;
 10. Claim is unenforceable under the Status of frauds; and
11. Non-compliance with a condition precedent for filing claim.

 The language of the rule particularly on the relation of the words “abandoned” and “otherwise
extinguished” to the phrase “claim or demand deemed set forth in the plaintiff’s pleading “is
broad enough to include within its ambit the defense of bar by laches (Pinede v. Heirs of Elisio
Guevarra, G.R. No. 1688557, February 19, 2007 ).

Note: A motion to dismiss generally party takes the nature of a demurrer. It hypothetically admits the
allegation stated in the complaint. However, the admission extends ONLY to material and relevant
allegations.

Requisites of Litis pendentia

1. Identity of parties or at least such parties representing the same interests in both actions;
2. There is substantial identity in the cause of action and relief sought, the relief being founded
on the same facts; and
3. The identity in the two cases should be such that any judgment that may be rendered in
one, regardless of which party is successful, would amount to res judicata in the other case.

2 meanings of legal capacity to sue:

1. When the plaintiff does not possess the necessary qualifications to appear at the trial such as
when the plaintiff is not in the full exercise of his civil rights like minority.
2. When the plaintiff does not have character\ presentation which he claims to be guarded
when in reality he is not.
Legal capacity-disability of the plaintiff
Back of legal-personality to sue- plaintiff is not a real party in interest.

CONDITION PRECEDENT
1. Failure to exhaust administrative remedies.
2. Failure to undergo brgy. Conciliastion
3. Earnest efforts to compromise between family members.

Note: It is applicable between the same parties only when the judgment to be rendered
in the action first instituted will be such that, regardless of which party is successful, it
will amount to res judicat against the second action (HSBC vs. Aldecoa and Co., G.R. No.
L- 8437, March 23, 1915).

 A motion to dismiss may be filed in either suit, not necessarily in the one instituted first.

Requisite of Res Judicata

1. Previous final judgment or order;
2. Jurisdiction over the subject matter and the parties by the court rendering it;
3. Judgment upon the merits; and
4. There must be identity of parties, of subject matter, and of cause if action between the first
and second actions.
Note: There could be res judicata without a trial, such as in the judgment on the pleadings (Rule 34); a
summary judgment ( Rule 35); or an order of dismissal under Section 3 of Rule 17.

Prescription
A motion to dismiss on the ground of prescription will be given due course only if the complaint
shows on its face that the action has already prescribed.

Prescription Laches
It is concerned with the fact of delay. It is concerned with the effect of delay.
It is a matter of time. It is a matter of equity.
Statutory. Non-statutory.
Applies a law. Applies in equity.
Based on fixed time. Not based on fixed time.

Complaint States No Cause of Action

When the ground for dismissal is that the complaint states no cause of action, such fact can be
determined only from the facts alleged in the complaint.

Failure to State a Cause of Action and Not Lack or Absence of cause of Action is the ground for a
motion to dismiss. The former means there is insufficiency in the allegations in the pleading. The latter
means that there is insufficiency in the factual basis of the action.

Effects of Action on Motion to Remedy

Dismiss
Order granting motion to dismiss
a final order (without prejudice)
Order granting motion to dismiss
(with Prejudice)
Order denying the motion to
dismiss is interlocutory
Re-file the complaint.
Appeal.
File answer and proceed with the
trial, if decision is adverse,
appeal there from and raise as a
error the denial of a motion to
dismiss. If there is grave abuse of
discretion amounting to lack or
excess of jurisdiction, Certiorari
or Prohibition may lie under Rule
65.

Non-Compliance with a Condition precedent

Non-compliance with P.D. 1508 (Katarungang Pambarangay Law) may result in dismissal
of the case on the ground of non-compliance with a condition precedent.

SECTION 2. HEARING OF MOTION

SECTION 3. RESOLUTION OF MOTION

The court may:

1. Dismiss the action;
2. Deny the motion; or
3. Order the amendment of the pleading
Note: In resolving the motion to dismiss, the court is required to give reasons for its resolution.

SECTION 4. TIME TO PLEAD

Defendant is granted only the balance of the reglementary period to which he was at the time
he filed his motion to dismiss, counted from his receipt of the denial but not less than 5 days in any
event.
If pleading is ordered to be amended, defendant shall file answer within the period prescribed
by, Rule 11 from service amended pleading UNLESS the court provides a longer period.

SECTION 5. EFFECT OF DISMISSAL

General Rule: The action or claim may be filed.

Exception: The action cannot be re-filed if it was dismissed on any of these grounds: (PURE)
1. Prescription;
2. Unenforceability under the Statute of Frauds;
3. Res judicata; and
4. Extinguishment of the claim or demand;

 In these instances, the remedy of the plaintiff is APPEAL.

-Set date for hearing Discretionary.

SECTION 6. PLEADING GROUND AS AFFIRMATIVE DEFENSES

If no motion to dismiss had been filed, any of the grounds for dismissal provided for in Rule 16.
INCLUDING IMPROPER VENUE may be pleaded as affirmative defenses in the answer and a preliminary
hearing may be had thereon in the discretion of the court.

Note: If the defendant would want to file a counterclaim, he should NOT file a motion to dismiss.
Instead, he should allege the grounds of a motion to dismiss as affirmative defenses in his answer with a
counterclaim. A preliminary hearing may be had thereon, and in the event the complaint is dismissed,
the defendant can PROSECUTE his counterclaim.

The 2nd paragraph of Section 6 clearly provides that the dismissal of the complaint is without prejudice
to the prosecution of the counterclaim.
RULE 17. DISMISSAL OF ACTION

SECTION 1. DISMISSAL UPON NOTICE BY PLAINTIFF

Dismissal is effected not by motion but by mere NOTICE of dismissal which is a matter of right
BEFORE the SERVICE of:
1. The answer; or
3. A motion for a summary judgment.

Note: The dismissal as a matter of right ceases when an answer or a motion for a summary judgment is
SERVED on the plaintiff and NOT when the answer or the motion is FILED with the court. Thus, if a notice
of dismissal is filed by the plaintiff even after an answer has been filed in court but before the responsive
pleading has been served on the plaintiff, the notice of dismissal is STILL A MATTER OF RIGHT (Riano,
2007, p. 224).

WON COMPLAINT MUST BE SEFTED:

a. If within 15 days from the time it is ordered dismissed, set aside and the order of dismissal and
revive the case.

b. Not become final- file a new action.

GENERAL RULE: If you dismiss the complaint, the compulsory counterclaim is also dismissed.
EXCEPTION: The defendant can revive the compulsory counterclaim within 15 days.

The rule requires a COURT ORDER confirming the dismissal.

Such dismissal is WITHOUT REJUDICE,

EXCEPT:

1. Where the notice of dismissal so provides; or

2. Where the plaintiff has previously dismissed the same case in a court of competent
jurisdiction (Two Dismissal Rule). Effect Adjudication upon merits.

 If the plaintiff files a notice of dismissal providing therein a reason that prevents the refilling of
the complaint, the dismissal must be deemed one with prejudice. This happens when the notice
provides that the plaintiff recognizes the fact of prescription or extinguishment of the obligation
of the defendant or for reasons stated in Sec. 5 of Rule 16 (Riano, 2007, p.225).

SECTION 2. DISMISSAL UPON MOTION OF PLAINTIFF

Under the section, the dismissal of the complaint is subject to the DISCRETION of the court and
upon such terms and condition as may be just.
 If a counterclaim has been pleaded by the defendant PRIOR TO THE SERVICE upon him of the
plaintiff’s motion for dismissal, the dismissal shall be LIMITED TO THE COMPLAINT.

Such dismissal shall be without prejudice to the right of the defendant to either:
1. Prosecute his counterclaim in a separate action; OR

2. To have the same resolved in the same action. In this case defendant must manifest such preference
to the trial court within 15 days from notice to him of plaintiff’s motion to dismiss.

 These alternative remedies of the defendant are available to him regardless of whether his
counterclaim is compulsory or permissive.

Dismissal under this Rule is WITHOUT PREJUDICE, except:

1. When otherwise stated in the motion to dismiss; or

2. When stated to be with prejudice in the order of the court.

The approval of the court is necessary in the dismissal or compromise of a class suit.
Class suit cannot be dismissed without order of the court.

Section 2 Section 3

Dismissal is at the instance of the plaintiff. Dismissal is not procured by plaintiff though
justified by causes imputable to him.

Dismissal is a matter of procedure, without Dismissal is a matter of evidence, an

prejudice unless otherwise stated in the order adjudication of the merits.
of the court or on plaintiff’s motion to dismiss
his own complaint.

Dismissal without prejudice to the right of the Dismissal is without prejudice to the right of
defendant to prosecute his counterclaim in a the defendant to prosecute his counterclaim
separate action unless within 15 days from on the same or separate action.
notice of the motion he manifests his intention
to have his counterclaim resolved in the same
action.
SECTION 3. DISMISSAL DUE TO FAULT OF PLAINTIFF

Causes for Dismissal

1. Plaintiff fails to appear for no justifiable cause on the date of the presentation of his
evidence in chief on the complaint;
2. Plaintiff fails to prosecute his action for an reasonable length of time (Nolle Prosequi); and
3. Plaintiff fails to comply with these Rules or any order of the court.

 The plaintiff’s failure to appear at the trial after he has presented his evidence and rested his
case DOES NOT WARRANT the dismissal of the case on the ground of failure to prosecute. It is
merely a waiver of his right to cross-examine and to object to the admissibility of evidence
(Jalover vs. Ytoriaga, G.R. No. L-35989, Oct. 28, 1977).

Compliant may be dismissed:

1. Upon motion of the defendant; or

2. Upon the court’s own initiative.

Dismissal shall have the effect of an ADJUDICATION UPON THE MERITS (RES JUDICATA), unless
otherwise declared by the court or if the court has no yet acquired jurisdiction over the person of the
defendant (Herrera, vol. 1 p. 798).

SECTION 4. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM, OF THIRD-PARTY COMPLAINT

A dismissal or discontinuance of an action operates to annul orders, ruling or judgments previously

made in the case, as well as all proceeding had in connection therewith and renders all pleadings
ineffective (Servicewide Specialist, Inc. vs. CA, G.R. No. 110597, May 8, 1996).

RULE 18. PRE-TRIAL

Pre-trial is a mandatory conference and personal confrontation before the judge between
the parties and their respective counsel.
- Not a ground of dismissal

SECTION 1. WHEN CONDUCTED

After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move
ex-parte that the case be set for pre-trial.

 Specifically, the motion is to be filed within 5 days after the last pleading joining the issue has
been served and filed (Administrative Circular No. 3-99 January 15, 1999). If the plaintiff fails to
file said motion within the given period, the branch clerk of court shall issue a NOTICE OF PRE-
TRIAL (A.M. No. 03-109-SC, July 13, 2004).

Note: The “LAST PLEADING” need not be literally construed as the actual filing of the last pleading. For
purposes of the pre-trial, the expiration of the period for filing the last pleading is sufficient (Sarmiento
vs. Juan G.R. No. 56605, Jan. 28, 1983).
SECTION 2. NATURE AND PURPOSE

The Court shall consider:

1. The possibility of an amicable settlement or of an submission to alternative modes dispute
resolution;
2. The simplification of issues;
3. The necessity or desirability of amendments to the pleadings;
4. The possibility of obtaining stipulations or admissions of facts and documents to avoid
unnecessary proof;
Note: The process of securing admissions, whether of facts or evidence, is essentially voluntary.
When the parties are unable to arrive at a stipulation of agreed facts, the court must close the pre-
trial and proceed with the trial of the case (Filoil Markiting Corp. vs. Pac and Co, G.R. No. 29636,
Sept. 30, 1982).
5. The limitation of the number of witnesses;
6. The advisability of a preliminary reference of issue to a commissioner;
7. The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing
the action should a valid ground therefor be found to exist;
8. The advisability or necessity of suspending the proceedings; and
9. Such other matters as may aid in the prompt disposition of the case.

Notice of the lawyer is notice to party.

Both the lawyer and the party should appear

Excused if:
1. A representative shall appear on behold fully authorized in writing;
2. For valid cause.

SECTION 3. NOTICE OF PRE-TRIAL

The notice of pre-trial shall be served on counsel, or on the party who has no counsel. The
counsel served with such notice is charged with the duty of notifying the party represented
by him.

SECTION 4. APPEARANCE FOR PARTIES

BOTH the parties and their counsel must appear at the pre-trial.
When non-appearance of a party may be EXCUSED:
1. If the valid cause is shown therefore; AND
2. If a representative shall appear in his behalf fully authorize in writing to:
a. Enter into an amicable statement;
b. Submit to alternative modes of dispute resolution; and
c. Enter into stipulations or admissions of facts and of documents.

 Written authority must be in the form of Special Power of Attorney (Riano, 2007, p. 306). If the
party is a corporation, the SPA must be supported by a board solution.
Note: The mere presentation of such written authority is not sufficient, but must be complemented by a
showing of valid cause for the non-appearance of the part himself.

Instances where the plaintiff may be penalize by the court with dismissal of his complaint.
1. Where the plaintiff fails to appear during the presentation of his evidence-in-chief (Rule 17,
Sec.3);
2. Failure to appear in the press conference;
3. Failure to file a pre-trial brief by defendant 2 & 3;
4. Failure to answer under Rule on default.

SECTION 5. EFFECT OF FAILURE TO APPEAR

Effect of Non-Appearance of Plaintiff:

Cause for the dismissal of the action. This dismissal shall be with the prejudice except when the court
orders otherwise.

Effect of Non-Appearance of Defendant:

Cause the plaintiff to present evidence ex parte and for the court to render judgment on the basis
thereof.
Note: The non-appearance of the defendant in the pre-trial is not a ground to declare him in default.

SECTION 6. PRE-TRIAL BRIEF

Contents of the Pre-Trial Brief

1. A statement of their willingness to enter into amicable settlement or alternative modes of
dispute resolution, indicating the desired term thereof;
2. A summary of admitted facts and proposed stipulations of facts;
3. The issues to be tried or resolved;
4. The documents or exhibits to be presented stating the purpose thereof;
5. A manifestation of their having availed or their intention to avail themselves of discovery
procedures or referral to commissioners; or
6. The number and names of the witnesses, and the substance of their respective testimonies.

Note: Failure to file pre-trial brie has the same effect as failure to appear the pre-trial.

Principles Involved in Compromise Agreements

The authority to compromise litigation is not mandatory required to be in writing. The vital thing is that
the authority has made expressly. The authority to compromise if not in writing may be established by
evidence.
 Compromise agreement entered without authority is not valid, but unenforceable and may be
ratified (Lim Pin vs. Liao Tan, G.R. No. L-47740, July 20. 1982).

SECTION 7. RECORD OF PRE-TRIAL CONTENTS OF PRE-TRIAL ORDER

1. A statement of the nature of the case;

2. The stipulations or admissions of the parties including testimonial and documentary evidence;
3. The issues involved: a) Factual; and b) Legal;
4. Number of witnesses; and
 5. The dates of trial.

 The proceeding in the pre-trial shall be recorded.

The contents of the PE-TRIAL order shall control the subsequent course of the action, UNLESS:
1. Modified before the trial to prevent manifest injustice (Rule 18, Sec. 7);
2. Issues impliedly included therein or may be inferable therefrom by necessary implication
(Velasco vs. Apostol, G.R No. 44588, May 9, 1989); and
3. Amendment to conform to evidence (Rule 10, Sec. 5).

A party is deemed to have waived the delimitations in a pre-trial order if he failed to object to the
introduction of evidence on an issue outside of the pre-trial order, as well as in cross examining the
witness in regard to said evidence.

PRE-TRIAL

No Settlement Amicable Settlement Failure to Appear

If plaintiff is If defendant is
Absent, when so absent, court may
Agreement made required to hear evidence of
by parties; attend, the court plaintiff ex parte.
Amendments to may dismiss the
pleading; case.
Schedule of trial

TRIAL

If evidence is
insufficient to prove
plaintiff’s cause of
action of defendant’s
Court renders decision
counterclaim, the
court rules in favor of
either one or dismiss
the case.
RULE 19. INTERVENTION

Intervention is a legal proceeding by which a third person is permitted by the court to become a party
by intervening in a pending action after meeting the conditions and requirement set by the Rule of
Court.

SECTION 1. WHO MAY INTERVENE

1. One who has a legal interest in the matter in litigation;

2. One who has a legal interest in the success of either of the parties;
3. One who has interest against both parties; or
4. One who is so situated as to be adversely affected by a distribution of property in the custody of
the court or of an officer thereof.

Note: Intervention is never an independent proceeding but is ancillary and supplement to an existing
litigation. Hence the final dismissal of the principal action results in the denial of a pending motion for
intervention.

Exception: when intervention has been allowed and the complaint in intervention has already been filed
before plaintiff’s action had been expressly dismissed (Metro Bank vs. RTC- Manila, Br. 39, G.R. No.
89909, Sept. 21, 1990).
 Denial of motion to intervene does not constitute res judicata. Remedy of intervenor is to file a
separate action (Asuncion v. Pineda, G.R. No. L- 47924, July 31, 1989).

Factors to be considered by the Court

1. Whether or not the intervention will unduly delay or prejudice the adjudication of the rights of
the original parties; and
2. Whether or not the intervenor’s rights may be fully protected in a separate proceeding.

Interest in the Subject means a direct interest in the cause of action as pleaded and which would put
the interventor in a legal position to litigate a fact alleged in the complaint, without the establishment of
which plaintiff could not recover (Magsaysay Labrador vs. CA., G.R. No. 58168, December 19, 1989).

Intervention Interpleader
An ancillary action. An original action.
Proper in any of the four situations mentioned in Presupposes that the plaintiff has no interest in
this Rule. the subject matter of the action or has an interest
therein, which in whole or in part, is not disputed
by the other parties to the action.
The action is against either or both the original Defendants are being sued precisely to implead
parties to the pending suit. them.

SECTION 2. TIME TO INTERVENE

The motion to intervene must be filed at any time BEFORE RENDITION OF JUDGMENT by the trial court.
Note: After rendition of judgment, a motion to intervene is barred, even if the judgment itself
recognizes the right of the movant.
The REMEDY of the movant is to file a separation action

Exceptions:
1. With respect to the indispensable parties, intervention may be allowed even on appeal
(Falcasantos vs. Falcasantos, G.R. No. L-4627, May 13, 1952).
2. When the intervenor is the Republic (Lim vs. Pacquing, G.R. No. 115044, Jan. 27, 1995).
3. Intervention may be allowed after judgment where necessary to protect some interest which
cannot otherwise be protected, and for the purpose of preserving the intervenor’s right to
appeal (Herrera vol. 1 p847).

SECTION 3. PLEADING-IN-INTERVENTION

1. Complaint-in-intervention n – If the intervenor asserts a claim against either or all of the

original parties.
2. Answer-in-intervention – if the intervenor unites with the defendant in resisting a claim against
the latter.

SECTION 4. ANSWER TO COMPLAINT-IN-INTERVENTION

Within 15 days from notice of the order admitting the same.

Remedies for the Denial of the Intervention:

1. APPEAL; or
2. MANDAMUS, if there is grave abuse of discretion.
 If there is improper granting of intervention, the remedy of the party is ceritiorari.

RULES 20: CALENDAR OF CASES

Preference shall be given to:

1. Habeas corpus cases;
2. Election cases;
3. Special civil actions; and
4. Those so required by law.

SECTIONS 2. ASSIGNMENT OF CASES

Note: Assignment of cases is required to be done exclusively by raffle.

RULE 21: SUBPOENA

SUBPOENA SUMMONS
A order to appear and testify or to produce books An order to answer to complaint.
and documents
May be served to a non-party Served on the defendant.
Needs tender of kilometrage, attendance fee and Does not need tender of kilometrage and other
reasonable cost of production fee. fees.

SECTION 1. SUBPOENA AND SUBPOENA DUCES TECUM

Subpoena Ad Testificandum is a process directed to a person requiring him to attend and to testify at
the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the
taking of his deposition.

Subpoena Duces Tecum is a process directed to a person requiring him to bring with him books,
documents, or other things under his control.

SECTION 2. BY WHOME ISSUED

Who May Issue:

1. Court (authorized bodies,[DOJ,NBR]) before whom the witness is required to attend;
2. Court of the place where the deposition is to be taken (Rule 23);
3. Office of body authorized by law to do so in connection with investigations conducted by said
officer or body; or
4. Any justice of the SC or of the CA in any case or investigation pending within the Philippines.

Subpoena to a Prisoner:
It must be for a valid purpose. If prisoner required to appear in court is sentenced to death, reclusion
perpetua or life imprisonment and is confined in prison – must be authorized by the SC.

SECTION 3. FORM AND CONTENTS

A subpoena:
1. Shall state the name or the court and the title of the action or investigation;
2. It shall be directed to the person whose attendance is required; and
3. In the case of subpoena duces tecum, it shall contain a reasonable description of the books,
documents or thing demanded which must appear o the court to the prima facie relevant.

SECTION 4. QUASHING A SUBPOENA

A. Subpoena Duces Tecum may be quashed upon: (MPura)

1. Motion promptly made; AND
2. Proof that:
a. It is unreasonable and oppressive;
b. The article sought to be produced do not have appear prima facie to be relevant to the
issues; or
c. The person asking for the subpoena does not advance the cost for the production of the
article desired.
B. Subpoena Ad Testificandum may be quashed if the witness is not bound thereby.

In EITHER CASE, the subpoena may be quashed for failure to tender the witness fees and kilometrage
allowed by the Rules.
SECTION 5. SUBPOENA FOR DEPOSITIONS

SECTION 6. SERVICE

Service of subpoena shall be made in the same manner as personal or substituted service of summons
1. The original shall be exhibited and a copy thereof be delivered to the person on whom it is
served;
2. Tending to him the fees for one day’s attendance or kilometrage allowed by the Rules; except
that when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or
agency thereof, the tender need not be made;
3. The service must be made so to allow a witness a reasonable time for preparation and travel to
the place of attendance; and
4. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or thing
demanded shall also be tendered.

SECTION 7. PERSONAL APPEARANCE IN COURT

General Rule:
(Section 8) The court which issued the subpoena may issue a WARRANT FOR THE ARREST OF WITNESS
(ask the court to issue the warrant of arrest) and make him pay the cost of such warrant and seizure, if
the court should determine that his disobedience was willful AND without just cause.

(Section 9) The refusal to obey a subpoena without adequate cause shall be deemed CONTEMPT of the
court issuing it (declare contempt of court).

*You cannot be competed to testify if you have not been served with a subpoena.

Exception: A person is present in court before judicial offer may be required to testify as if he is under
subpoena.

SECTION 10. EXCEPTIONS

Provisions regarding the compelling of attendance (Sec. 8) and contempt (Sec. 9) do NOT apply where:
1. Witness resides more than 100 kilometers from his residence to the place where he is to testify
by the ordinary course of travel (Viatory Right); and
Note: This refers only to civil and not to criminal cases (Genorga vs. Quitan, G.R. No. 891 July 21,
1977).
2. Permission of the court in which the detention prisoner’s case is pending is not obtained.

RULE 22. COMPUTATIONS OF TIME

SECTION 1. HOW TO COMPUTE TIME

SECTION 2. EFFECT OF INTERRUPTION

 Any extension of time to file the required pleading should be counted from the expiration of the
period regardless of the fact that the said due date is a Saturday, Sunday or legal holiday (A.M
 No. 00-2-14-SC, as explained in Luz vs. National Amnesty Commission, G.R. No. 1597028, Sept.
24, 2004).

RULES OF DICOVERY
Discovery is a device employed by a party to obtain information about relevant matters on the
case from the adverse party in the preparation for trial (Riano, 2007 p. 310).

Purpose: To enable the parties to obtain the fullest possible knowledge of the issues and evidence long
before the trial to prevent such trial from being carried on in the dark.

Modes of Discovery under the Rules of Court (D-DIAPP)

1. Deposition pending action (Rule 23);
2. Depositions before action or pending appeal (Rule 24);
3. Interrogatories to parties (Rule 25);
4. Admission by adverse party (Rule 26);
5. Production or inspection of documents, or things (Rule 27); and
6. Physical and mental examination of persons (Rule 28).

 Modes of Discovery is intended to be COMULATIVE, and not alternative nor mutually exclusive.

Note: Discovery is NOT MANDATORY but failure to avail carries sanctions in Rules 25 and 26.

SUBPOENA SUMMONS
Directed against witness Defendant
Witness is directed to appear in court or to Defendant informed that a complaint is filed
bring documents. against him and he must file responsive
pleading within the period otherwise,
judgment can be rendered
For failure to comply: Can be declared in default
Can be declared in contempt or can compelled
by issuance if warrant of arrest
Applicable to civil and criminal cases Only to civil cases
There is 100KM limitation of its enforceability. There is no distance

BILL OF PARTICULARS MODES OF DISCOVERY

To clarify vague statement of facts but not to Intended to compel the other party to reveal
compel the other party to reveal evidentiary evidentiary facts.
facts.

DEPOSITION AFFIDAVIT
Sworn statement of witness but statement is There is cross-examination or confrontation as
take ex-parte. if he is already testifying in court.

RULE 23. DEPOSITION PENDING ACTION

Deposition is a written testimony of a witness given in the course of a judicial proceeding in advance of
the trial or hearing upon oral examination or in response to written interrogatories and where an
opportunity is given for cross-examination.

 Depositions are different from affidavits since the latter are ex-parte statements without formal
interrogation and opportunity for cross-examination. Affidavits are NOT admissible in evidence
except in cases governed by the Rule on Summary Procedure or in ordinary cases subject to
cross-examination.

Depositions are intended as a means to compel disclosure of facts resting in the knowledge of a
party or other person, which are relevant in a suit\proceeding.

Classification of Deposition
1. Deposition on oral examination and Deposition upon written interrogatories;
2. Deposition de bene esse-Those taken for purposes of a pending action (Rule 23); and
3. Deposition in perpetuam rei memoriam-Those taken to perpetuate evidence for purposes of an
anticipated action or further proceedings in a case on appeal (Rule 24).

AS TO THE REQUIREMENT OF LEAVE OF COURT

a. Action personam-Defendant filed an answer court acquires jurisdiction.

Requires no leave of court
b. No-answer-requires motion.

*Deposition can be had even before pre-trial; or even during the process of execution of a final
and executor y judgment.

What can be beasked?

*Any matter whether related to the claim on defense of any other party

*Within 5 days period availment of the modes of discovery during pre-trial

*Not a mandatory but discretionary

*Must be utilized not in bad faith

*Purpose-fishiry expedition

*Liberal treatment.

SECTION 1. DEPOSITION PENDING ACTION, WHEN MAY BE TAKEN

When taken:
A. With leave of Court
1. After jurisdiction has been obtained over any defendant or over the property which is
the subject of the action but BEFORE an answer has been filed.
 Ratio: Leave of court is necessary because the issues are not yet joined and the disputed
facts are not yet clear.
2. Deposition of a person confined in prison.
B. Without Leave of Court
AFTER answer AND deponent is not confined in prison.

 An answer ex abudante cautela (“out of abundant caution”or “to be on the safe side) does not
make an answer less of an answer. Thus, when an answer ex abudante cautela is filed,
deposition may be made WITHOUT leave of court (Rosette vs. Lim, G.R.No. 136051, June 8,
2006).

Deposition cannot substantive for oral testimony but can be used only for the purpose of contradicting
or impeachment the testimony of deponent as witness
*Used in a) trial b) hearing a motion c) interlocutory

SECTION 2. SCOPE OF EXAMINATION

Scope of Examination in Depositions

1. Matter which is relevant to the subject of the pending action;
2. Not privileged; and either the Rules on Evidence or Special Law.
3. Not restricted by a protective order (Section 16 and 18).

SECTION 3. EXAMINATION AND CROSS-EXAMINATION

SECTION 4. USE OF DEPOSITIONS

Where the witness is available to testify and the situation is not one of those excepted under Section 4,
his deposition is inadmissible in evidence and he should be made to testify.

Deponent
Any person.
A party or any one who at the time of the
deposition was an OFFICER, DIRECTED, or
MANAGING AGENT of a public or private corp.,
partnership, or association which is a party.
Witness, whether or not a party.
Use
By any party for contradicting or impeaching the
testimony of deponent as witness.
By an adverse party for any purpose.
By any party for any purpose if the court finds the
5 instances occurring.

 Deposition can be used as evidence by a party (“for any purpose”) under the specific conditions
in Section 4.

Five Instances Where Deposition of any Witness may be Used for any Purpose (DR. USE)
1. The witness is dead;
 2. The witness resides more than 100 kilometers from the place of trial of hearing, or is out
of the Philippines. Unless it appears that his absence was procured by the party offering
the deposition;
3. The witness is unable to testify because of age, sickness, infirmity, or imprisonment;
4. The party offering the deposition has been unable to procure the attendance of the
witness by subpoena; OR
5. Upon application and notice, that such exceptional circumstances exist as to make it
desirable in the interest of justice.

Note: Certiorari will not lie against an order admitting or rejecting a deposition in evidence. The remedy
is an appeal from the final judgment.

Ratio: Because it is merely an error of law not grave abuse of discretion.

SECTION 5. EFFECT OF SUBSTITUTION OF PARTIES

The substitution of the parties does not affect the right to use to once depositions previously taken.

SECTION 6. OBJECTIONS TO ADMISSIBILITY

It the judge who will rule on objection during the trial. The deposition officer cannot rule but objection is
recorded.

SECTION 7. EFFECT OF TAKING DEPOSITIONS

General Rule: A party shall be deemed to make his person his own witness for any purpose buy taking
his deposition because depositions are taken for discovery and not for use as evidence.

Exception: If a party offers a deposition in evidence, then he is deemed to have made the deponent his
witness (Se. 8).

Exception to the exception: UNLESS the deposition is that of an opposing party OR the deposition is
used to impeach or contradict the deponent (Sec. 8).

SECTION 9. REBUTTING DEPOSITION

SECTION 10 AND 11. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN

Within the Philippines:

1. Judge;
2. Notary Public; or
3. Any person authorized to administer oaths; as stipulated by the parties in writing (Sec. 14).

Outside the Philippines:

1. On notice before a secretary of embassy or legation consul general, consul, vice-consul, or
consular agent on the Philippines;
2. Before such person or officer as maybe appointed by commission or under letters rogatory; or
 3. Any person authorizes to administer oaths, as stipulated by the parties in writing (Sec. 14).

SECTION 12. COMMISSION OR LETTERS ROGATORY

Commission is an instrument issued by a count of justice; or other competent tribunal, to authorize a

person to take depositions or to any other act by authority of such court tribunal (addressed to officers
either by name or descriptive title).

Letters Rogatory is not instrument sent in the name and by the authority of a judge or court to another,
requesting the latter to cause to be examined, upon interrogatories filed in a case pending before the
former, a witness who is within the jurisdiction of judge or court to whom such letter are addressed
(Feria, 2001 p.518). *Addressed to same appropriate judicial authority.

Commission Letters Rogatory

Issued to a non-judicial foreign officer who will
directly take the testimony (appointment).
Applicable rules of procedure are those of the
requesting court.
Resorted to if permission of the foreign country is
given.
Leave of court is not necessary.
Issued to the appropriate judicial officer of the
foreign country who will direct somebody in said
foreign country to take down testimony.
Applicable rules of procedure are those of the
foreign court requested to act.
Resorted to if the execution of the commission is
refused in the foreign country.
Leave of court is necessary.

SECTION 13. DISQUALIFICATION BY INTEREST

NO deposition shall be taken before a person is:

1. A relative within the 6th degree of affinity or consanguinity;
2. A employee or counsel of any of the parties;
3. A relative within the same degree, or employee of such counsel; and
4. Financially interested in the action.

SECTION 14. STIPULATIONS REGARDING TAKING OF DEPOSITIONS

By notice: Stating the place, time, name and address of each person to be examined.

SECTION 15. DEPOSITIONS UPON ORAL EXAMINATION; NOTICE; TIME AND PLACE

There should be notice to the adverse party.

SECTION 16. ORDERS FOR THE PROTECTION OF PARTIES AND DEPONENTS

SECTION 17. RECORD OF EXAMINATION; OATH; OBJECTIONS

SECTION 18. MOTION TO TERMINATE OR LIMIT EXAMINATION

May be filed (by motion or petition of any party)
1. Any time during of taking of the depositions;
2. On motion or petition or any part or of the deponent; and
3. Upon showing that the examination is conducted in:
a. Bad faith;
b. In such manner as reasonably to annoy, embarrass, or oppress the deponent or party.

May terminate limit:

 When the constitutional privilege against self-incrimination is invoked by deponent or his
counsel, the trial court may stop the examination (Isabela Sugar Co. vs. Macadaeg, G.R No. L-
5924, Oct. 28, 1953).

Protection Order (Section 16) Motion to terminate or Limit Examination

Provides protection to the party or witness before
the taking of the deposition.
Motion is filed with the court in which the action is
pending.
(Section 18)
Provides protection during the taking of the
deposition.
Motion or petition is filed in the court in which the
action is pending OR the RTC of the place where
the deposition is being taken.

SECTION 19. SUBMISSION TO WITNESS; CHANGES; SIGNING

SECTION 20. CERTIFICATION AND FILING BY OFFICER

SECTION 21. NOTICE OF FILING

SECTION 22. FURNISHING OF COPIES

SECTION 23 & 24. FAILURE TO ATTEND OF PARTY GIVING NOTICE; FAILURE OF PARTY GIVING OF
NOTICE TO SERVE SUBPOENA
The court may order the party giving the notice to pay such other party the amount of reasonable
expenses incurred by him and his counsel in so attending including reasonable attorney’s fees.

SECTION 25. DEPOSITION UPON WRITTEN INTERROGATIONS; SERVICE OF NOTICE AND OF

INTERROGATORIES

SECTION 26. OFFICERS TO TAKE AND PREPARE RECORD

SECTION 27. NOTICE OF FILING AND FURNISHNG OF COPIES

SECTION 28. ORDERS FOR ERROR AND IRREGULARITIES IN DEPOSITIONS

1. As to notice- Waived unless written objection is properly served upon the party giving the
notice.
 2. As to disqualification of officer- Waived unless made before the taking of the deposition begins
or as soon thereafter as the disqualification becomes known.
3. As to competency and relevancy of evidence- NOT waived by failure to make them before or
during the taking of the deposition unless the grouNd of the objection is one which might have
been obviated or removed if presentEd at that time.
4. As to oral examination- Waived unless reasonable objections thereto is made the taking of the
deposition.
5. As to form of written interrogatories- Waived unless served in writing upon the party
propounding them within the time allowed.
6. As to manner of preparation- Waived unless a motion to suppress the deposition or some part
thereof is made with reasonable promptness after such defect is, or with due diligence might
have been, ascertained.

RULES 24. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

 A deposition before action and a deposition pending appeal are referred to as perpetuation of
testimony or perpetuam rei memoriam because their objective is to perpetuate the testimony of
a witness for future use.
 Depositions under this Rule are also taken conditionally; to be used at the trial only in cause the
deponent is not available.
 Depositions under this Rule do not prove the existence of any right and the testimony
perpetuated is not in itself conclusive proof, either of the existence of any right or even of the
facts to which they relate, as it can be controverted at the trial in the sane manner as though no
perpetuation of testimony was ever had.

However, in the absence of any objection to its taking, and even if the deponent did not testify at the
hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition.

SECTION 1. DEPOSITION BEFORE THE ACTION; PETITION

Where to file: residence of any expected party by independent position.

A petition may be fled by any person;

1. Who wants to perpetuate his own testimony; or
2. Who wants to perpetuate the testimony of other person.

Note: This may be availed of ONLY in civil cases and NOT in criminal cases.

For example, the petitioner has a cause of action which has not yet accrued. In such a case, inasmuch as
he cannot bring the action until the cause of action is accrues, he may perpetuate his testimony or that
of another person (Feria, 2001, p.534).

SECTION 2. CONTENTS OF PETITION

The petition shall be verified and shall be filed in the place of residence of any expected adverse party. It
shall contain the matters set forth in Sec. 2 of Rule 24.
SECTION 3. NOTICE AND SERVICE

1. The petitioner shall serve a notice upon each person named in the petition as an expected
adverse party, together with a copy of the petition, stating the petitioner will apply to the court,
at same time and place stated therein; and
2. At least 20 days before the date of hearing, the court shall cause notice thereof to be served on
the parties and prospective deponents in the manner provided for in the service of summons.

SECTION 4. ORDER AND EXAMINATION

SECTION 5. REFERENCE TO COURT

SECTION 6. USE OF DEPOSITION

If deposition is taken under this Rule, it may be used in any action involving the SAME SUBJECT MATTER
subsequently brought.

SECTION 7. DEPOSITIONS PENDING APPEAL

Depositions are taken pending appeal with the view to their being used in the event of further
proceedings in the COURT OF ORIGIN OR APPELATE COURT.

For example, a party may perpetuate the testimony of a witness which was objected by the adverse
party and ruled out by the court. If the appellate court should reverse the decision/order of the court, it
could admit the deposition as ADDITIONAL EVIDENCE or remand the case back to the lower court for
such ADMISSION in accordance with Sections 4 and 5 of Rule 23 (Feria 2001, p.537).

RULES 25. INTERROGATIONS TO PARTIES

Purpose of Written Interrogatories: To elicit facts from the adverse party (answers may also be used as
admissions of the adverse party).
 Written interrogatories and the answers thereto must both be FILED and SERVED. Hence the
answers may constitute as JUDICIAL ADMISSIONS (Sec. 4 Rule 129).

Interrogatories Bill of Particulars

A party may properly seek disclosure of matters of A party may properly seek disclosure only of
proof which may later be made a part of the matters which define the issues and become a part
records as evidence. of the pleadings.

Depositions Upon Written Interrogatories to Interrogations to Parties (Rule 25)

Parties (Rule23, Sec. 25)
As to the Deponent

Party or ordinary witness. Party only.

As to Procedure
With intervention of the officer authorized by the No intervention. Written interrogatories are
court to take deposition. directed to the party himself.
As to Scope

Direct, cross, redirect, re-cross. Only one set of interrogatories.

Interrogatories
No fixed time. 15 days to answer unless extended or reduced
by the court.

SECTION 1. INTERROGATION TO PARTIES; SERVICE THEREOF

A party may serve written interrogatories;

1. Without Leave of Court – After answer has been served, for the first et of interrogatories.
2. Without Leave of Court – Before answer had been served.

Reason: At the time, the issues are not yet joined and the disputed facts are not yet clear.

SECTION 2. ANSWER TO INTERROGATORIES

The interrogatories shall be answered fully in writing and shall be sworn to by the person making them.
 Answers cannot be made by an agent or attorney; answers not by the parties are nullities
(Herrera vol. 2 p24).
 A judgment by default may be rendered against a party who fails to answer written
interrogatories.

SECTION 3. OBJECTIONS TO INTERROGATORIES

Objections to interrogatories ma be presented to the court within 10 days after service thereof, with
notice as in the case of motion.

Answer ma be deferred until objections are resolved which shall be at the earliest possible time.

SECTION 4. NUMBER OF INTERROGATORIES

Only one set of interrogatories ma the same party is allowed. Leave of court is necessary for succeeding
sets of interrogatories.
SECTION 5. SCOPE AND USE OF INTERROGATORIES

The SCOPE of interrogatories shall be the matters mentioned in Sec. 2 Rule 23. The answer may be USED
for the same purpose provided in Section 4 of the same Rule.
 Since answers to the interrogatories may be used for the same purposes as depositions, they
may also be the basis of a summary judgment under Rule 35.

SECTION 6. EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES

Unless a party had been served written interrogatories, he may not be compelled by the adverse party;
1. To give testimony in open court; or
2. Give a deposition pending appeal.

The only EXCEPTION is when the court allows it for GOOD CAUSE shown and to prevent a failure of
justice.

Note: The sanction adopted by the Rule is not one of compulsion in the sense that the party is being
compelled to avail of the discovery mechanics, but one of negation by depriving him of evidentiary
sources which otherwise had been accessible to him.

RULE 26. ADMISSION OF ADVERSE PARTY

SECTION 1. REQUEST FOR ADMISSION

Purpose of written request for admission: To expedite trial and relieve the parties of the costs of
providing fact which will not disputed on trial and the truth of which can be ascertained by reasonable
inquiry.

When request may be made: At any time after the issue had been joined (after the responsive pleading
has been served).

What request may include:

1. Admission of the genuineness of any material and relevant document described in and exhibited
with the request;
2. Admission of the truth of any material and relevant matter of fact set forth in the request; or
3. Under this Rule, a matter of fact not related to any documents may be presented to the other
party for admission or denial.

Request for Admission Actionable Document

Proper when the genuineness of an evidentiary Must be attached to the complaint or copied
document is sought to be admitted. If not denied therein. Its genuineness and due execution is
under oath, its genuineness is deemed impliedly deemed impliedly admitted unless specifically
admitted. Essentially a mode of discovery. denied under oath by the adverse party.

SECTION 2. IMPLIED ADMISSION

Each of the matters of which an admission is requested shall be deemed admitted UNLESS the party
whom the request is directed files and serves upon the party requesting the admission a sworn
statement either denying specifically the matters of which an admission is requested or setting forth the
reasons why he cannot either admit or deny those matters.

 The remedy of the party, in this case, is to file a motion to relieve of the consequences of the
implied admission. The amendment of the complaint per se cannot set aside the legal effects of
the request for admission since its materiality has not been affected by the amendment.
SECTION 3. EFFECT OF ADMISSION

Use: An admission under this Section is for the purpose of THE PENDING ACTION ONLY and cannot be
used in other proceedings.

SECTION 4. WITHDRAWAL

SECTION 5. EFFECT OF FAILURE TO FILE AND SERVE-REQUEST FOR ADMISSION

The party who fails to refuse the request the admission of facts in question is prevented from thereafter
presenting evidence thereon UNLESS otherwise allowed by the court.

RULE 27. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

This Rule applies only to a pending action and the document or things subject of the motion must be
only those within the possession, control, custody of a party.

Requisites:
1. A motion must be filed by party showing good cause therefore;
2. Notice of the motion must be given to all parties;
3. The motion shall sufficiently describe the document or thing during sought to be produced or
inspected.
4. The document or thing sought to be produced or inspected must not constitute or contain
evidence material to the pending action.
5. Must not be privilege.
6. Must be in the possession of the adverse party or at least under his control.

Republic vs. Sandiganbayan

1. As a device, along with pre-trial order under Rule 18, to narrow and clarify the basic issue
between the parties;
2. Serves as ascertaining the facts relative to those issues;
 To be accorded with broad and liberal treatment;
 Simply advances the stage at which disclosure can be compelled from the time of trial to the
period it, thus reducity the possibility of surprise.

Instances where the defendant can be declared in default even if he already filed an answers Failure
to:
1. Appear at the pre-trial conference;
2. File a pre-trial brief
3. Cooperate with the modes of discovery

General Rule:
Not more one month for its adjournment but maximum of 3 posponements.

Except:
When authorized in writing by the court administrator.
Production or Inspection of Documents or Things Subpoena Duces Tecum
Essentially a mode of discovery. A means of compelling production of evidence.
The Rules is limited to the parties to the action. It may be directed to a person whether a party or
not.
The order under this Rule is issued only upon It may be issued upon an ex parte application.
motion with notice to the adverse party.

SECTION 1. MOTION FOR PRODUCTION OR INSPECTION; ORDER

Production of documents affords more opportunity for discovery than a subpoena duces tecum.
However the rule is not extended for use as a dragnet or any fishing expedition.

The DOCUMENTS to be produced:

1. Should not be privileged; and
2. Should constitute or contain evidence material to any matter involved in the action, and which
are in his (the party ordered) possession, custody or control.
 In petition for the production of papers and documents, they must be sufficiently described and
identified. Otherwise the petition cannot prosper.
 This mode of discovery does not authorize the opposing party or the clerk or other functionaries
of the court to distain the articles or deprive the person who produced the same of their
possession (Tanda vs. Aldaya, L-13423, Nov. 23, 1959).

RULE 28. PHYSICAL AND MENTAL EXAMINATION

This mode of discovery is available in a action in which the mental or physical condition of a party is in
controversy.

 The mental condition of a party is in controversy in proceedings for GUARDIANSHIP over an

imbecile or instance person, while the physical condition of the party is generally involved in
PHYSICAL INJURIES cases.
 Since the results of the examination are intended to be made public, the same are not covered
by the physician-patient privilege (Sec. 24b. Rule 130).

SECTION 2. ORDER FOR EXAMINATION

Requisites to Obtain an Order for Examination:

1. A MOTION must be filed for the physical and mental examination;
2. The motion must show GOOD CAUSE for the examination;
3. NOTICE to the party to be examined and to all other parties; and
4. The motion shall SPECIFY the time, place, manner, conditions, and scope of the examination and
the person or persons by whom it is made.

SECTION 3. REPORT OF FINDING

If requested by the party examined, the party causing the examination to be made shall deliver to him a
copy of a detail written report of the examination physician.
After such request and delivery, the party causing the examination to be made shall be entitled upon
request to receive from the party examined a like report of any examination, previously or thereafter
made, of the same mental or physical condition.

SECTION 4. WAIVER OR PREVILEGE

Where the party examined request and obtains a report on the results of the examination, the
consequences are:

1. He has to furnish the other party a copy of the report of any previous or subsequent
examination of the same physical and mental condition; and
2. He waives any privilege he may have in that action or any other involving the same controversy
regarding the testimony of any other person who has so examined him or may thereafter
examine him.

SUMMARY -LEAVE OF COURT

1. Depositions pending-no answer - R

-answer filed-NR
-before action pending appeal-R
2. Interrogatories-no answer-R
-answer filed-NR
3. Request for admission-NR
4. Production\ Inspection-R
5. physical examination-R

RULE 29. REFUSAL TO COMPLY WITH THE MODE OF DISCOVERY

Refusal To Comply With Modes Of Discovery Sanctions

Refusal to answer any question
1. The court, may, upon proper application,
compel a refusing deponent to answer
(Sec. 1).
a. If granted and refusal to answer is
without substantial justification, court
may require the refusing party to pay
the proponent the mount of the
reasonable expenses incurred in
obtaining the order, including
attorney’s fees.
b. If denied the filed without substantial
justification, court may require the
proponent to pay the refusing party
the amount of the reasonable
expenses incurred in obtaining the
order, including attorney’s fees.

Refusal to Sworn (Sec. 2)
Refusal to answer designated questions or refusal
to produce documents or to submit to physical or
mental examination (Sec. 3)
Refusal to Admit under Rule 26 (sec. 4)
Failure of Party to attended or serve answers to
written interrogatories (sec. 5)
2. A refusal to answer after being directed by
the court to do so may be considered as
contempt court (Sec. 2)
Cite the disobedient deponent of contempt of
court
The court may make the following orders:
1. Prohibit the disobedient party to introduce
evidence of physical or mental condition
2. Refuse to allow the disobedient party to
support or oppose claims or defenses
3. Strike out pleadings or parts thereof
4. Stay further proceedings
5. Dismiss the action or proceeding or any
part thereof
6. Render a judgment by default against
disobedient party
7. Direct the arrest of any party or agent of a
party disobeying any of such orders except
an order to submit to a physical or mental
examination
The court, upon proper application, issue an order
requiring the other party to pay him reasonable
expenses incurred, including attorney’s fees
The court, on motion and notice may:
1. Strike out all or any part of any pleading of
disobedient party;
2. Dismiss the action or proceeding on any
part thereof;
3. Enter a judgment by default against
disobedient party;
4. Order payment of reasonable expenses
incurred by the other including attorney’s
fees.

If a party refuses to answer the whole written interrogatories, Section 5 of Rule 29 applies. Where a
party refuses to answer a particular question, in the set of written interrogatories and despite an order
compelling him to answer, still refuses to obey the order, Section 3 (c) will apply (Zepeda v. China
Banking Corporation, G.R. No. 172175, October 9, 2006).

Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines under this Rule.

RULE 30: TRIAL

Trial is the judicial process of investigating and determining the legal controversies starting with the
production of evidence by the plaintiff and ending with his closing arguments.

General Rule: When an issue exists trial is necessary. Decision should not be made without trial.
Exceptions: When there may be judgment without trial:
1. Judgment on the Pleading(Rule 34);
2. Summary judgment (Rule 35);
3. Judgment on Compromise;
4. Judgment by Confession;
5. ]dismissal with Prejudice (Rule 17);
6. Judgment under Rule on Summary Procedure; and
7. Stipulation of fact.

SECTION 1. NOTICE OF TRIAL

Trial Hearing
Reception of evidence and other processes; the Not confined in trial but embraces several stages
period of the introduction of evidence by both of litigation, including the pre-trial stage.
parties.
Does not necessary imply presentation of evidence
in open court but the parties are afforded the
opportunity to be heard.

SECTION 2. ADJOURNMENTA AND POSTPONEMENTS

A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient
transaction of business may require.

However, the court has no power to adjourn a trial for;

1. A period longer than one month for each adjournment; OR
2. More than 3 months in all, except when authorized in writing by the court administrator,
Supreme Court.

SECTION 3. REQUISITES OF MOTION TO POSPONE TRIAL FOR ABSENCE OF EVIDENCE

Requisites:
1. A motion for postponement stating the ground relied upon must be filed; AND
2. The motion must be supported by an affidavit showing:
a. The materiality and relevancy of such evidence; and
b. That due diligence has been used to procure it.
 If the adverse party admits the facts to be given in evidence, the trial will not be postponed
even if he objects or reserves the right to object to their admissibility (Feria, Civil Procedure
Annotated, Vol. 1, p.565).

Note: The section DO NOT apply to criminal cases as the rule of postponements in criminal cases is
governed by Sec. 2, Rule 119.

2 REASONS:
1. Absence of evidence;
2. Illness of the party or counsel.
SECTIONS 4. REQUISITES OF MOTION TO POSPONED TRIAL FOR ILLNES OF PARTY OR COUNSEL

Requisites:
1. A motion of postponement stating the ground relied must upon must be file; and
2. The motion must be supported by an affidavit or sworn certification showing:
a. The presence of such party or counsel at the trial is indispensable; and
b. That the character of his illness is such as to render his non attendance excusable.

 Postponements are addressed to the sound discretion of the court. In the absence of grave
abuse of discretion, it cannot be controlled by mandamus (Olsen vs. Fressel & Co., G.R. No.
12955, Nov. 8 1917).

SECTION 5. ORDER OF TRIAL

Plaintiff presents evidence

Defendant presents evidence to Defendant files demurer to evidence

support his
defense/counterclaim/cross-
claim/Third-party complaint

If court grants If court denies motion:

Third-party defendant
motion: Renders Continuous with
presents evidence if any
dismissal hearing

Parties against whom a

counterclaim or cross-
claim is pleaded presents
evidence in their defense

Rebuttal Evidence by
Parties
After presentation of evidence:

1. Oral arguments
DECISION 2. Submission of
memoranda
General Rule: The pre-trial order shall limit the issues and control the subsequent course of action.
Except: Unless for good cause and in furtherance of justice permits.

General Rule: No evidence in chief in the rebuttal stage.

Except: GCJP; Instances:
1. When it is newly discovered new evidence;
2. Evidence is omitted thru in their inadvertence or mistake;
3. When the purpose of the evidence is to correct evidence previously offered;
4. When the additional evidence offered is material and not merely cumulative.

Note: Subject to Section 2 of Rule 31 and unless the court special reasons, otherwise directs, the trial
shall be limited to the issues stated in the pre-trial order.

Reverse Order of Trial

In the situation, the defendant presents evidence ahead of the plaintiff.

When Proper:
If the defendant in his answer relies upon an affirmative defense, a reverse order of trial is proper.

Ratio: Plaintiff need not have to present evidence since judicial admissions do not require proof (Sec. 2,
Rule 129).

Note: Evidence offered in rebuttal is not automatically excluded just because it would have been more
properly admitted in the case in chief (Regalado, Remedial Law Compendium, Volume 1, 9th Ed., p.378).

SECTION 6. AGREED STATEMENTS OF FACT

This is known as Stipulation of Facts and is among the purpose of a pre-trial. Under the Rules, it must be
in writing. But it may also be verbally made in open court.

Note: If NO EVIDENCE IS PRESENTED and the case is submitted for decision on an agreement of the
parties, the court should render judgment in the accordance with said agreement. The court cannot
impose upon the parties a judgment different from their compromise agreement.
Basis: Judicial Admission

However, the compromise agreement must not be contrary to law, morals, good customs, public order
and public policy (Philippine Bank of Communications vs. Echiverri. G.R No. L-41795, Aug. 29, 1980).

 Stipulations of Facts (SOF) are not permitted in actions for annulment of marriage and for legal
separation.
 SOF in Civil Case SOF in Criminal Case
May be signed by the counsel alone who has a Must be signed both by the counsel and the
special power of attorney. abused.
Made may be made verbally or in writing. Strict; It must always be in writing.

SECTION 8. SUSPENSION OF ACTIONS

Under, ARTICLE 2030 OF THE Civil Code: Every civil action of proceeding shall be suspended:
1. If willingness to discuss a possible compromise is expected by one or both parties; OR
2. If it appears as one of the parties, before the commencement of the action or proceeding,
offered to discuss a possible compromise but the other party refused the offer.

SECTION 9. JUDGE TO RECEIVE EVIDENCE; DELEGATION TO CLERK OF COURT.

General Rule: The judgment shall personally receive and resolve the evidence to adduce by the parties.
HOWEVER, the recreation of such evidence may be delegated under the following conditions:
1. The delegation may be mad only in defaults or ex-parte hearings, and in any case where the
parties agree in writing;
2. The reception of evidence shall be made only by the clerk of that court who is the member of
the bar;
3. Said clerk shall be no power to rule on objects to any question or any admission of evidence or
any exhibits; and
4. He shall submit his report and transcripts of the proceedings, together with the objections to be
resolved by the court within 10 days from the termination of the hearing.

RULE 31. CONSOLIDATION OF SEVERANCE

Consolidation involves severance actions having a common question or law of fact which may be jointly
tried.
Severance contemplates a single action having a number of claims, counterclaims, cross-claims, third-
party complaints, or issues which may be separately tried.

SECTION 1. CONSOLIDATION

General Rule: Consolidation is discretion upon the court.

Exceptions: Consolidation becomes a number of duties when the cases are:

1. Pending before the same judge; OR
2. Filed with different branches of the same RTC and one of such cases has NOT been partially
tried.
Purpose: To avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear
congested dockets, simplify the works of the trial and save unnecessary costs and expenses.

Requisites for Consolidation:

1. Actions may involve a common question of law or fact; and
2. There must be at least 2 actions pending before the same court:
  If filed with DIFFERENT courts, authorization from THE SUPREME COURT is necessary.

Three (3) Ways of Consolidating Cases:

1. By recasting the cases already instituted – Reshaping of the cases by amending the pleading and
dismissing some cases and retaining only one case. There must be joinder of causes of action
and of parties;
2. By consolidation proper or by consolidating the existing cases – It is a joint trial with joint
decision the cases retaining their original docket numbers; and
3. By test-case method – by hearing only the principal case and suspending the hearing on the
other cases until judgment has been rendered in the principal case. The cases retain their
original docket numbers.

Consolidation of cases on appeal and assigned to different divisions of the SC and the CA is also
authorized.

Note: The consolidation of civil and criminal cases is allowed. This now sanctioned under Section 2 (a),
Rule 111 of the Rules of Criminal Procedure (Canons vs. Peralta, G.R No. L- 38352, Aug. 19, 1982).

SECTIONS 2. SEPARATE TRIALS

RULE 32. TRIAL BY COMMISIONER

SECTION 1. REFERENCE OF CONSENT

Commissioner - a person to whom a case pending in court is referred, for him to take testimony, hear
the parties and report thereon to the court, and upon whose report, if confirm, judgment is rendered (2
Martin, p.142)
 Reference to a commissioner may be had by the written consent ob both parties.

General Rule: Trial by commissioner depends largely upon the discretion of the court. BUT the following
are instances when such appointment is mandatory:
1. Expropriation (Rule 67);
2. Partition (Rule 69);
3. Settlement of Estate of a Deceased Person in case of contested claims; and
4. Submission of accounting by executors or administrators.

Note: An irregularity in the appointment of a commissioner must be seasonably raised in the trial court
when the defect could still be remedied. It can be seasonably raised in the trial court where the defect
could still be remedied. It can be WAIVED by consent of the parties, express or implied.

SECTION 2. REFERENCE ORDERED ON MOTION

Situation when reference to a Commissioner may be made ON MOTION: (ETC-Q)

1. Examination of a long account;
2. Taking of an account is necessary;
3. Carrying a judgment or order into effect; or
4. Question of facts, other than upon the pleading arises.
SCETION 3. ORDER OF REFERENCE; POWERS OF THE COMMISSIONER

Requisites of the order of reference:

1. It must state the purpose;
2. It must be in writing; and
3. It may specify or limit the power of the commissioner.
Powers of commissioners (RASIR)
1. Exercise power to regulate the proceedings before him;
2. Do all acts and take all measures necessary or proper for the efficient performance of
his duties;
3. Swear witnesses;
4. Issue subpoenas and subpoenas duces tecum;
5. Unless otherwise provided in the order of reference, rule upon the admissibility of
evidence.

Note: Requirement of bearing cannot be dispensed with as this is the essence of due process.

SECTION 4. OATH OF COMMISSIONER

CRIMINAL CASES:
 Only one offense can be subject of one complaint\ information. Consolidation of criminal
actions is exclusively for joint trial.
 The so-called consolidation of criminal actions is not actually filing one information but it is only
for the purpose of joint trial.
 Separate trial. No consolidation, only joint trial.

SECTION 5. PROCEEDINGS BEFORE THE COMMISSIONER

SECTION 6. FAILURE OF PARTIES TO APPEAR BEFORE COMMISSIONER

Where the order was merely to examine the accounts involved in the counterclaim without
any direction to hold hearings, the commissioner do not need the presence of the parties (Froilan v. Pan
Oriental Shippiny . G.R. No. L-6060, September 30, 1954).

SECTION 7. REFUSAL OF WITNESS

Disobedience to a subpoena issued by the commissioner is deemed contempt of the court which
appointed the latter.

SECTION 8. COMMISSINER SHALL AVOID DELAYS

SECTION 9. REPORT OF COMMISSIONER

Delegation of Clerk of Court Trial by Commissioner

Clerk of court must be a lawyer.
Clerk of court cannot rule on objections or on the
admissibility of evidence.
Delegation is made during trial.
Commissioner need not be a lawyer.
Commissioner can rule on objections or on
admissibility of evidence.
Commissioner can be appointed even after the
case has become final and executory.
SECTION 10. NOTICE TO THE PARTIES OF THE FILING OF REPORT

Upon the filing of the report of the commissioner

1. The parties shall be notified by the clerk;
2. The parties shall be allowed 10 days within which to object to the filing of the report.
Note: Objections to the report based upon grounds which where available to the parties during the
proceedings before the commissioner shall not be considered by the court, UNLESS they were made
before the commissioner.

SECTION 11. HEARING UPON REPORT

SECTION 12. STIPULATIONS AS TO FINDINGS

When the parties stipulate that a commissioner’s filing shall be final, only questions of law shall
thereafter be considered.

SECTION 13. COMPENSATION OF COMMISSIONER

RULE 33: DEMMURER TO EVIDENCE

SECTION 1. DEMURRER TO EVIDENCE

Demurrer to Evidence is a motion to dismiss based on the ground of insufficiency of evidence and is
presented after the plaintiff rests his case.

Nature: There is only a one- sided trial, l.e., it is only the plaintiff who has presented evidence.

Purpose: To discourage prolonged litigations.

Demurrer to Evidence Motion to Dismiss (Under Rule 16)

It is presented after the plaintiff has rested his
case.
The ground is based on insufficient of evidence.
If the motion is denied, the defendant may present
his evidence.
If the motion is granted, the compliant is dismiss.
The REMEDY of the plaintiff is APPEAL.
Presented before a responsive pleading (answer) is
made by the defendant.
It may be based on any of those enumerated in
Rule 16.
If the motion to dismiss is denied, the defendant
may file his responsive pleading.
If the motion to dismiss is granted, the complaint is
dismissed and depending on the ground, the
complaint may be re-filed.

Two Scenarios

Motion Denied Motion Granted But Reversed On Appeal

Movant shall have the right to present his Movant is deemed to have waived his right to
evidence. present evidence. The decision of the appellate
court will be based only on the evidence of the
 plaintiff as the defendant loses his right to have
the case remanded for reception of his evidence.

Civil Cases Criminal Cases

Defendant need not ask for leave of court.
Defendant can present evidence even without
leave of court.
If the court finds plaintiff’s evidence insufficient, it
will grant the demurrer by dismissing the
complaint.
The judgment of dismissal is appealable. If granted
appeals and judgment is reversed by the appellate
court, it will decide the case on the basis of the
plaintiff’s evidence with the consequence that the
defendant already loses his right to present
evidence; There is no res judicata in dismissal due
to demurrer.
The plaintiff’s file a motion to deny motion to
demurrer to evidence.
If court denies the demurrer, defendant will
present his evidence.
May be filed with or without leave of court. Leave
of court is necessary so that the accused could
present his evidence if the demurrer is denied.
If the court finds the prosecution’s evidence
insufficient, it will grant the demurrer by rendering
judgment acquittal the accused. Judgment of
acquittal is not appealable; double jeopardy sets-
in.
Judgment of acquittal is not appealable; double
jeopardy sets-in.
The court may motu proprio deny the motion.
If court denies the demurrer:
If demurrer was with leave, accused may present
his evidence.
If demurrer was without leave, accused can no
longer present his evidence and submits the case
for decision based on the prosecution’s evidence.

Judgment on Demurrer to Evidence is a judgment rendered by the court dismissing a case upon motion
of the defendant, made after plaintiff has rested his case, on the GROUND that upon the facts presented
and the law on the matter plaintiff has not shown any right to relief.

Note: The requirement under this Rule would apply if the demurrer is granted, for in this event, there
would in fact be adjudication upon the merits of the case, leaving nothing more to be done
(Nepomuceno v. COMELEC, G.R. No. L-60601, Dec. 29, 1983).

RULE 34. JUDGMENT ON THE PLEADINGS

Judgment on the pleadings is a judgment rendered by the court if the answer fails to tender an issue, or
otherwise admits the material allegations of the adverse party’s pleading.

It is rendered without a trial, or even without a pre-trial.

SECTION 1. JUDGMENT ON THE PLEADINGS

A judgment on the pleading must be on motion of the claimant. HOWEVER, if at the pre-trial the court
finds that a judgment on the pleadings is proper, it may render such judgment motu proprio (Sec. 2g,
Rule 18).

 One who prays for judgment on the pleadings without offering proof as to the truth of his own
allegations and without giving the opposing party an opportunity to introduce evidence, must
be understood to ADMIT all MATERIAL and RELEVANT ALLEGATIONS of the opposing party and
to rest his motion for judgment on those allegations taken together with such of his own as are
admitted in the pleadings (Falcasantos vs. How Suy Ching GR. No. L-4229, May 29, 1952).

Allegations not Deemed Admitted by Filing of Judgment on the Pleadings:

1. Irrelevant allegations;
2. Immaterial allegations; and
3. Allegations of damages in the complaint.

Grounds for Judgment on the Pleadings

1. The answer fails to tender as issue because of:
a. General denial of t he material allegations of the complaint;
b. Insufficient denial of the material allegations of the complaint; OR
2. The answer admits material allegations of the adverse party’s pleading.

Note: By moving for judgment on the pleadings, plaintiff waives his claim for unliquidated damages.
Claim for such damages must be alleged and proved.

No Judgment on the Pleadings in Actions for:

1. Declaration of Nullity of Marriage;
2. Annulment of marriage; and
3. Legal Separation;
4. When the issue is the amount of unliquidated damages because there must always be evidence
to prove such amount;
5. When only conclusions of law are being alleged.

General Rule: You cannot secure judgment by motion alone.

Exceptions:
1. Demurrer to evidence;
2. Judgment on the pleading;
3. Summary judgment;

Motion to Dismiss Motion for Judgment on the pleadings

Filed by a defendant to a complaint, Filed by the plaintiff if the answer fails to
counterclaim, cross-claim or 3rd –party tender an issue.
complaint.

Note: If the complaint states no cause of action, a motion to dismiss should be filed and not a motion for
judgment on the pleadings.
A Motion for judgment on the Pleading is one that is considered ex parte because upon particular facts
thus presented, the plaintiff is entitled to judgment, or motu proprio under Rule 18 (2g) (Dino v.
Valencia, G.R. No. L- 43886, July 19, 1989).

RULE 35. SUMMARY JUDGMENT

SUMMARY JUDGMENT is a judgment rendered by a court without trial if it is clear that there exists NO
GENUINE ISSUE or controversy as to any material fact, EXCEPT as to the amount of damages.

Genuine Issue is an issue of fact which calls for the presentation of evidence as distinguished from an
issue which is a sham, fictitious, contrived, and patently unsubstantial so as not to constitute a genuine
issue for trial.

Summary Judgment Judgment on the Pleading Judgment by Default ( Rule

Based on the pleadings,
depositions, admissions and
affidavits.
Available to both plaintiff
and defendant.
There is no genuine issue
between those parties, l.e.
there may be issues but
these are irrelevant.
10-day notice required.
May be interlocutory or on
the merits.
Available only in actions to
recover a debt, or for a
liquidated sum of money or
for declaratory relief.
If filed by plaintiff, it must be
filed at any time after an
answer is served; If filed by
defendant, may be filed at
any time even before there
is an answer.
No genuine issue of fact
(GROUND)
(HOW JUDGMENT
RENDERED)Pleading,
affidavit, depositions, and
admissions on file
(AS TO WHO ASK
9)
Based solely on the Based on the complaint and
pleadings. evidence, if presentation is
required.
Generally available only to Available to plaintiff.
the plaintiff, unless the
defendant presents a
counterclaim.
The answer fails to tender an No issue as no answer is filed
issue or there is an by the defending party.
admission of material
allegations.
3-day notice required. 3-day notice rule applies.
On the merits. On the merits.
Available in any action Available in any action
except annulment of except annulment of
marriage or legal separation marriage or legal separation
cases. cases.
There is an answer filed. There is no answer filed.
No issues on fact at all to be
tried.
Only on the basis of the
pleading.
Claimant only.
 JUDGMENT) Both the
claimant and the defendant

An action of annulment of marriage cannot decide by summary judgment proceeding (Roque vs.
Encarnacion, 95 Phil 543, 1954).
However, summary judgment is made specifically applicable to a special civil action for declaratory relief
(Rule 63).

SECTIONS 1 & 2. SUMMARY JUDGMENT ON CLAIMANT; SUMMARY JUDGMENT FOR DEFENDING

PARTY

Who can file:

1. Plaintiff: Male the motion after the answer and serve, and therefore must wait until the issues
have been joined.
2. Defendant: He can move the summary judgment at any time.

Test: Whether or not the pleading, affidavits and exhibits in support of the motion are sufficient to
overcome the opposing papers and to justify the finding that, as a matter or law, there no defense to the
action or claim is clearly meritorious (Estrada vs. Consololacion, et al., G.R No. L-40948, June 29, 1976).

SECTION 3. MOTION AND PROCEEDINGS THEREON

The motion has also satisfied the requirements on the Rule 15.

SECTION 4. CASE NOT FULLY ADJUDICATED ON MOTION

This authorize rendition of partial summary judgment but such is interlocutory in nature and is not a
final and appealable judgment (Guevarra vs. CA, G.R No. L-49017, Aug. 30, 1983).

SECTION 5. FORM OF AFFIDAVITS AND SUPPORTING PAPERS

Requisites of Affidavits:
1. Based on personal knowledge;
2. Seth forth facts as would be admissible in evidence;
3. Affiant is competent to testify on matters stated therein; and
4. Certified on copies of all papers must be attached thereto and served into opposing party.

The Three Stages in Civil Action

1. Issue formation stage;
2. Stage of proof; and
3. Judgment Stage.

SECTION 6. AFFIDAVITS IN BAD FAITH

Sanctions:
1. Pay to the other party the amount the reasonable expenses including attorney’s fees; and
2. After hearing, adjudged offending party guilty of contempt.
Bases of Summary Judgment
1. AFFIDAVITS made on personal knowledge
2. DEPOSITIONS of the adverse party of a third party under Rule 23; and
3. ADMISSIONS of the adverse party under Rule 26; and
4. ANSWERS to interrogatories under Rule 25. All intended to show that:
a. There is no genuine issue as to many material fact, except damages which must always be
proved; and
b. The movant is entitled to a judgment as a matter of law.

 Even if the answer does tender an issue, and therefore a judgment on the pleadings in NOT
proper, a summary judgment may still be rendered if the issues tendered are NOT genuine, are
sham, fictitious, contrived, set-up in bad faith, and patently unsubstantial (Vergara vs. Suelto,
G.R. No. L-74766, December 21, 1987).

RULE 36. JUDGMENTS, FINAL OREDRS, AND ENTRY THEREOF

Judgment is the final consideration and determination of a court of competent jurisdiction upon the
matters submitted to it in action or proceeding.

Parts of a Judgment
1. The opinion of the court – Contains the findings of facts and conclusions of law;
2. The disposition of the case – The final and actual disposition of the rights litigated (the
dispositive part); and
3. Signature of the judge (Herrera, p. 145).

SECTION 1. RENDITION OF JUDGMENTS AND FINAL ORDER

Requisites of a Valid Judgment:

1. The court of the tribunal must be clothed with authority to hear and determine the matter
before it;
2. The court must have jurisdiction of the parties and the subject matter
3. The parties must have been give an opportunity to be heard
4. The evidence must have been considered by the tribunal in deciding the case
5. It should be in writing, personally and directly prepared by the judge;
6. It must state clearly and distinctly the facts and the law on which it is based; and
7. It should contain dispositive part and should be signed by the judge and filed with the clerk of
court.

Formal Requisites:
1. The judgment shall be in writing;
2. It shall personally an direct by the judge;
3. It shall state clearly and distinctively the facts and the law for which it is based;
4. It shall be signed by the judge and filed with COC.

Kinds of Judgments
1. Judgment upon compromise;
2. Judgment upon confession;
3. Judgment upon the merits;
 4. Clarificatory judgment;
5. Judgment non pro tunc (Now for then);
6. Judgment sin perjuicio;
7. Judgment by default (Sec. 3, Rule 9);
8. Judgment on the pleading (Rule 34);
9. Summary judgment (Rule 35);
10. Several Judgment (Sec. 4, Rule 36);
11. Separate Judgment (Sec. 5, Rule 36);
12. Special Judgment (Sec. 11, Rule 39);
13. Judgment for specific acts (Sec. 10, Rule 39);
14. Judgment of demurrer to evidence (Rule 33);
15. Conditional judgment;
16. Final judgment;
17. Amendment judgment;
18. Supplemental judgment;
19. Incomplete judgment.

Legal Effects of Compromise

1. Not appealable and immediately executory;
2. Cannot be annulled unless vitiated with error, deceit, violence, or forgery of documents.

A. Judgment upon a Compromise

It is one rendered by the court on the basis of a compromise agreement entered into between
the parties.
It is covered by Articles 2028 to 2046 of the New Civil Code.
Note: Judgment upon a compromise agreement in the absence of a motion to set aside on the ground
of fraud, mistake, etc. Hence, it has the effect of res judicata (World Machine enterprises vs. IAC, G.R No.
72019, Dec. 20, 1990).

 The parties may submit to a compromise agreement at any stage of the case, even if judgment
has already become final and executor, even without approval of the court.
 It cannot be annulled unless it is vitiated with error, deceit, violence, or forgery of document.
(Morales vs. Fontanos, 64 Phil. 19; Article 2038, Civil Code)

Advantage of Approval with Court: The court could render a judgment based upon a compromise and
in case of breach of any of the conditions, the party may ask the court for Execution of Judgment under
Rule 39.

B. Judgment by Confession
It is one rendered by the court when a party expressly agrees to the other party’s claim or
acknowledges the validity of the claim against him.

Two Kinds of Judgment by Confession

1. Judgment by COGNOVIT ACTIONEM
The defendant after service instead of entering a plea, acknowledged and confessed that the
plaintiff’s cause of action was just and rightful.
2. Judgment by CONFESSION RELICTA VERIFICATIONE
 After pleading and both trial, the defendant both confessed the plaintiff’s cause of action and
withdrew or abandoned his plea or other allegations, whereupon judgment was entered against
him without proceeding to trial.

Note: Remedy against judgment by consent, confession, or compromise is to first file a MOTION TO SET
IT ASIDE, then if denied file the appropriate PETITION UNDER RULE 64 (Sec. 1 Rule 41).

C. Judgment upon the Merits is one that is rendered after consideration of the evidence submitted
by the parties during the trial of the case.
D. Clarificatory Judgment is rendered to clarify an ambiguous judgment or one difficult to comply
with.
 Where the judgment is difficult to execute because ambiguity in its terms, the remedy is to
file a motion for clarificatory judgment and not to assail the judgment as void (Riano, p.
405).
E. Judgment Non Pro Tunic is a judgment intended to enter in to the record the facts which had
already been done, but which do not appear in the records.
F. Judgment Sin Perjuicio may refer into a dismissal of a case without prejudice to its being re-
filed. It is one which contains only the dispositive portion of the decision and reserves the
making of findings of facts and conclusions of law in a subsequent judgment.
G. Conditional Judgment is one wherein the affectivity of depends upon the occurrence or non-
occurrence of an event. As a general rule, judgment of such kind, conditioned upon a
contingency, are held to be NULL and AVOID. (Cu Unjieng y HIjos vs. Mabalacat Sugar Co.., 70
Phil. 380)
H. Incomplete Judgment is one which leaves certain matters to be settled in a subsequent
proceeding (Ignacio vs. Hilario, 76 Phil. 605). There is a decision but there are still other matters
to be incorporated later in such decision.

Judgment upon Compromise Judgment by Confession

The provisions and the terms are settled and An affirmative and voluntary act of the defendant
agreed upon by the parties to the action, and himself. The court exercises certain amount of
which is entered in the record by the consent of supervision over the entry of judgment.
the court.

Promulgation refers to the process by which a decision is published, officially announced, made known
to the public or delivered to the clerk of court for filing, coupled with notice to the parties or other
counsel.

Memorandum Decision is the decision of the appellate court which adopts the findings and the
conclusion of the trial court.
 Promulgation of Judgment

Court renders
decision

File an appeal within 15/30 days from notice of

judgment.
Losing Party

File a motion for reconsideration or motion for

Accepts decision without new trial within 15/30 days from notice of
further contest. judgment.

If no appeal is taken or did not

avail of remedies, judgment
becomes final and If granted, the court: If denied, losing party
execulatory. may appeal within a
1. Modifies decision; fresh 15-day period.
or (Neypes vs. Court of
2. Grants new trial Appeals.)

 The power to amend a judgment inherent to the court before judgment becomes final and
executor.

General Rule: After judgment has become final and executor, the court cannot amend the same.

Exceptions:
1. To make corrections of clerical errors, not substantial amendments, as by an
amendment non pro tunc;
2. To clarify an ambiguity which is borne out by an justifiable in the context of the decision;
or
3. In judgment for support, which can always be amended from time to time.

Rule: The validity of a judgment or order of a court cannot be collaterally attacked.

Exceptions:
1. Lack of jurisdiction; and
2. Irregularity of its entry apparent from the face of the record.

 A judgment permanently transferred to another COURT OF EQUAL JURISDICTION

(coordinate court) can render a decision on a case on his former court which was TOTALLY
HEARD by him and submitted for decision, with the parties having argued the case ( Valentin
vs. Sta. Maria, G.R. No. L- 30158, Jan. 17, 1974).
 Minute resolutions of the Supreme Court denying petition to review the decision of the
Court of Appeals are not decisions within the requirement of Sec. 1, Rule 36 (Commercial
Union Assn. Co., Ltd. V. Lepanto Consolidated Mining Co., G.R. No. L-43342, Oct. 30, 1978).

SECTION 2. ENTRY OF JUDGMENTS AND FINAL ORDERS

The date of finality of the judgment or final order shall be deemed to be the date of its entry.

Note: Entry of judgment or final order assumes importance in reckoning some reglementary periods,
such as the 5-year period of execution by motion (Sec. 6, Rule 39) or the 6-month period for a petition
for relief (Sec. 3, Rule 38) (Regalado, Remedial Law Compendium, Volume 1, 9 Ed., p. 413).

SECTION 3. JUDGMENT FOR OR AGAINST ONE OR MORE OF SEVERAL PARTIES

SECTION 4. SEVERAL JUDGMENTS

Several Judgment is one rendered by a court against one or more defendants and not against all of
them leaving the action to proceeds against the others.

Several judgment is PROPER where the liability of each part is clearly separable and distinct from his co-
parties such that the claims against each of them could have been the subject of separate suits, and the
judgment for or against one of them will not necessarily affect the other. A several judgment is NOT
PROPER in action against solidary debtors (Fernandez v. Sta. Maria, G.R. No. 160730, Dec. 10, 2004).

SECTION 5. SEPARATE JUDGMENTS

Separate Judgment is one rendered by a court disposing of a claim, among several others, presented in
a case after determination of the issues material to a particular claim and all counterclaims arising out of
transaction or occurrence, which is the subject matter of said claim.

 It is proper when more than one claim for relief is presented in an action and a
determination as to the issues material to the claim has been made. The action shall
proceeds as to the remaining claims.

Amended or Clarified Judgment Supplemental Decision

It is an entirely new decision and supersedes It does not supersede the original decision.
the original judgment.
Court makes a thorough study of the original Serves to bolster or add to the original
judgment and renders the amended and judgment.
 clarified judgment only after considering all
the factual and legal issues.

Remedies against Judgments or Final Orders

A. BEFORE finality of judgment or final order:
1. A motion for reconsideration;
2. A motion for new trial; or
3. An appeal.
B. AFTER the finality of the judgment or final order:
1. Relief from judgment or final order;
2. An annulment of judgment;
3. A petition for certiorari; and
4. Collateral attack of a judgment.

RULE 37. NEW TRIAL OR RECONSIDERATION

An order denying the motion for new

trial

2nd motion for new trial based on

grounds not existing or available when
the 1st motion was filed

Appeal from the judgment or final order

and assign as one of the errors the
denial of the motion for new trial

Fresh Period Rule

The aggrieved party has “fresh period” of 15 days within which to file his appeal. This applies to Rules
40, 41, 41, 43 and 45 (Neypes vs. CA, G.R. 141524, Sept. 14, 2005).

The fresh period of 15 days becomes significant only when a party opts to file a motion for new trial or
reconsideration (Riano, Civil Procedure, 2007 Edition, p.358).
The fresh period rule does not refer to the period within which to appeal from the order denying the
motion for reconsideration but to the period within which to appeal from the judgment itself because
an order denying a motion for reconsideration is not appealable (Riano, p. 433).

SECTION 1. GROUNDS OF AND PERIOD FOR FILING MOTION FOR NEW TRIAL OR RECONSIDEARTION

New Trial is the rehearing of a case already decided by the court but before the judgment rendered
thereon becomes final and executory, whereby errors of law and irregularities are expunged from the
record or new evidence is introduced, or both steps are taken.

Note: Rule 9 Sec 3 (b) on the rules from order of default and Rule 37 on motion for new trial has the
same grounds- FAME. Rule 37 could also be a remedy in Rule 9, Sec. 3 (b) and as a result, a judgment has
already been rendered. This is because Rule 37 is broader.

One remedy available to a party declared in default is, if the judgment has already been rendered when
the defendant discovered the default, but before the same has been final and executory , he may file a
motion for new trial under Section 1 (a of Rule 37 (Cerezo vs. Tuazon).

Rule 9 Sec. 3 (b) vs. Rule 37

 Rule 9, Section 3 [b] – after notice of the order of default but before the judgment
 Rule 37 – if there is already a judgment but not yet final and executor. During the period of
filing an appeal.

Motion for a New Trial

When to file: Within the period for talking an appeal.

Where to file: With the trial court which rendered the question judgment.

Motion for Reconsideration

When to file: Within the period for taking an appeal.

Where to file: With the trial court which rendered the judgment or final order sought to be
reconsidered.

Motion For a New Motion Motion for Reconsideration

Grounds: (FAME) fraud, accident, mistake or
excusable negligence or newly discovered
evidence which could not, with reasonable
diligence, have been discovered and produced at
the trial, and which presented would probably
alter the result.
Second motion may be allowed so long as based
on grounds not existing or available at the time the
1st motion was made.
Grounds: damages awarded are excessive, that the
evidence is insufficient to justify the decision or
final order, or that the decision is final order to
contrary law.
Second motion from the same party is prohibited.
(The prohibition applies only to final orders or
judgments; hence, it is allowed in interlocutory
orders.)
If a new trial is granted, the original judgment or
final order is vacated. The case stands for trial de
novo and will be tried anew.
Available even on appeal but only on the ground
of newly discovered evidence.
If the court finds that excessive damages have
been awarded or that the judgment or final order
is contrary to the evidence or law, it may amend
such judgment or final order accordingly.
Available against the judgment or final orders or
both the trial and appealable court.

Both are prohibited motions under Summary Procedure.

Note: The motion for reconsideration under Rule 37 is one that id directed against a judgment or final
order which for instance, precedes a petition for ceritoriari.

Fraud
Fraud is a ground for new trial must be extrinsic.

Extrinsic Fraud connotes any fraudulent scheme executed by the prevailing party outside of the trial
against the loosing party who because of that fraud is prevented from presenting his side from the case
(ex. Prevent witness from testifying).

Intrinsic Fraud refers to acts of a party during the trial which does not affect the presentation of the
case (ex. Presentation of the forged promissory note).
 An ACCIDENT may be defined as an event that takes without once foresight or expectation (ex.
A party after being hit with a car; fails to attend the trial).
 A MISTAKE generally refers to mistakes of fact or law where in good faith, the defendant was
misled in a case (ex. A party relying upon the compromise fails to answer and was declared in
default).
 What constitutes EXCUSABLE NEGLIGENCE depends upon the circumstances of each case.

General Rule: negligence of counsel is binding on the client.

Exception: Such negligence of counsel may be a ground for new trial I it was so great that the party was
prejudiced and prevented from fairly presenting his case.

Requisites of Newly-Discovered Evidence (Berry Rule)

1. It must have been discovered after the trial;
2. It could not have been discovered and produced at the trial even with the exercise or
reasonable diligence; and
3. The evidence is of such weight that if admitted would probably alter the result of the action; and
4. It must be material and not merely collateral, cumulative or corroborative.

These standards also known as the “Berry” rule, trace their origin to the 1851 case or Berry vs. State of
Georga.
 Newly discovered evidence need not be newly created evidence. It may and does commonly
refer to evidence already in existence prior or during the trial but which could not have been
secured and presented during the trial despite reasonable diligence on the part of the litigant
(Tumang vs. Court of Appeals, G.R. Nos.8234647, April 17, 1989).
 Newly Discovered Evidence
Evidence was not available to the party during
the trial, and was discovered only thereafter.
Forgotten Evidence
Evidence was already available to a party and
was not able to present it through
inadvertence or negligence of council; not a
ground for new trial.

Note: New trial should be distinguished from the exercise of the discretionary power of the court to
REOPEN a trial for the introduction of additional evidence, to clarify its doubts on material points. This
discretionary power is subject to no rule other than the paramount interest of justice and will not be
review on appeal unless the exercise thereof is abused (Arce vs. Arce, l-13035, Nov. 28, 1959).

SECTION 2. CONTENTS OF MOTION FOR NEW TRIAL OR RECONSIDERATION AND NOTICE THEREOF

A motion for new trail, beads on FAME must include an affidavit of merit, which states:
1. The nature or character of FAME;
2. The fact constituting the movant’s good and substantial defenses or valid cause of action; and
3. The evidence which he intends to present if his motion is granted.

 A motion for a new trial, based on newly discovered evidence, must contain affidavits of
witnesses or duly authenticated documents.
 A motion for reconsideration must point out the findings or conclusions not supported by
evidence or contrary to law.

Note: a motion suspends or tolls the running of the reglementary period for appeal except when the
same is pro-forma.

An AFFIDAVITS OF MERITS is one which recites the nature and character of FAME on which the motion
is based and stating the movant’s good and substantial cause of action or defense and the evidence he
intends to present if the motion is granted, which evidence should be such as to warrant reasonable
belief that the result of the case would probably be otherwise (Paz vs. Inandan, 75 Phil. 608; Manila
Surety vs. Del Rosario, 101 Phil. 412).

Without an affidavit of merits, the motion for new trial is a mere pro-forma motion.

Pro-Forma Motion is one where the movant fails to make reference to the testimonial and documentary
evidence on record or the provisions of law alleged to be contrary to the trial court’s conclusion as well
as the reasons thereof, or if there is no affidavit of merit. The period to appeal is NOT interrupted by the
filing of such motion for new trial.

Two (2) types of pro-forma motion for new trial under Rule 37:
1. A motion for new trial which is not supported by affidavits of merits-one which does not
comply in substance or in form with Section 2, and
2. A second motion for new trial on a ground available to the party when the first motion was
filed (Section 5).

Indication of a Pro-Forma Motion

1. It is based on the same ground as that raised in a denied motion under Rule 37;
 2. It contains the same arguments in the opposition to a granted motion to dismiss
3. The new ground alleged in the second motion for new trial already existed, was available and
could have been alleged in the first motion for new trial which was denied;
4. It is based on the ground of insufficiency of evidence or that the judgment is contrary to law but
does not specify the supposed defects in the judgment;
5. It is based on FAME but does not specify the facts constituting these grounds and\or is not
accompanied by an affidavit of merit; and
6. Non-compliance with the requirements of Rule 15.

Note: A motion for reconsideration, if based on the same grounds as that of a new trial, is considered a
motion for new trial and has the same effect (Rodriquez v. Rovira, G.R. No. 45252, Sept. 24, 1936).

SECTION 3. ACTION UPON MOTION FOR NEW TRIAL OR RECONSIDERATION

SECTION 4. RESOLUTION OF MOTION

SECTIION 5. SECOND MOTION FOR NEW TRIAL

“Single motion” Rule-A party shall not be allowed to file a second motion for reconsideration of
judgment or a final order. (Riano, 2009)

While a second motion for reconsideration is not allowed, a second for new trial is authorized by the
rules. A motion for new trial shall include all grounds then available otherwise they are deemed waived.
A second motion for new trial, based on a ground not existing nor available when the first motion was
made within the period allowed but excluding the time during which the first motion had been pending.

SECTIION 6. EFFECT OF GRANTING OF MOTIN FOR NEW TRIAL

When motion is granted, the original judgment is thereby vacated and the action stands for trial de
novo, but the recorded evidence taken upon the former trial so far as the same is material and
competent to establish the issues, shall be used at the new trial taking the same.

Motion for New Trial Motion for reopening of the Trial

Specifically mentioned in the Rules.
Proper only after promulgation of judgment.
Based upon specific grounds set forth under Rule
37 in civil cases and Rule 121 in criminal cases.
Not mentioned in the Rules but is nevertheless a
recognized procedural recourse deriving validity
and acceptance from long established usage. Note:
It is actually mentioned in the Rules of Criminal
Procedure (Rule 119, Sec. 24) and as a prohibited
pleading in the 1991 Revised Rule on Summary
Procedure (Sec. 19c).
May properly be presented only after either or
both the parties have formally offered and closed
their evidence before judgment.
Controlled by no other rule than the paramount
interests of justice, resting entirely on the sound
discretion of a trial court, the exercise of which
discretion will not be reviewed on appeal UNLESS a
 clear abuse thereof is shown.

Note: If the order granting a new trial is set aside, the original judgment is deemed repromulgated
(Pineda v. CA, Pineda v. CA, 65 SCRA 258, L-38196, July 22, 1975).
SECTION7. PARTIAL NEW TRIAL OR RECONSIDERATION

SECTION 8. EFFECT OF ORDER FOR PARTIAL NEW TRIAL

A. The court will enter judgment;
B. The court may stay the enforcement until the new trial.

SECTION 9. REMEDY AGAINST ORDER DENYING A MOTION FOR NEW TRIAL OR RECONSIDERATION

Not certiorari under Rule 65 nor appeal from the denial of the motion but appeal from the judgment or
final order.

 Denial of the motion; the “fresh period” rule- if the motion is denied, the movant has a fresh
period of fifteen (15) days from receipt or notice of the order denying or dismissing the motion
for reconsideration within which to file a notice of appeal. This “fresh period” rule applies not
only to Rule 41, but also to Rule 40, Rule 42, Rule 43 and Rule 45. (Neypes vs. Court of Appeals.
G.R. No. 141524, September 14, 2005).

Remedies to the defaulted

1. Motion to set asides order of default on the ground that his failure to file answers because
of FAME;
2. Motion for New Trial within period of appeal on the ground of FAME;
3. Petition for relief of judgment.

RULE 38. RELIEF FROM JUDGMENT ORDERS OR OTHER PROCEEDINGS

Note: This is not applicable to the Supreme Court because it is not a TRIER of FACTS.

SECTION 1. PETITION FOR RELIEF FROM JUDGMENT, ORDER OR OTHER PROCEEDING

This remedy presupposes that judgment has already become final and executor.

Nature: Not an independent action but a CONTINUATION of the old case. It is filed with the same court
which decided the case.

Grounds:
1. When judgment or final order is entered into or any other proceeding is thereafter taken against
the petitioner through FAME.
The phase “other proceeding” includes an order or writ of execution, or an order dismissing an
appeal (Medran v. CA, 83 Phil. 164)
2. When petitioner, has been prevented from taking an appeal by FAME.

Note: A petition for relief has been held to be applicable to all kinds of special proceedings, such as land
registration, intestate settlement, and guardianship proceedings (Regalado, Remedial La Compendium,
Vol. 1, 9th Ed., p. 432).
SECTION 2. PETITION FOR RELIEF FROM DENIAL OF AN APPEAL

The petition is, in effect, a second opportunity for an aggrieved party to ask for a new trial. Hence, the
grounds mentioned have the same concepts that they have in motion for new trial.

Rule 37 Rule 38
Available BEFORE judgment becomes final and Available AFTER judgment has become final and
executor. executory.
Applies to JUDGMENTS or FINAL ORDERS only. Applies to judgment, final orders and other
proceeding:
Land Registration;
Special Proceedings;
Order of Execution.
GROUNDS: GROUNDS:
a. FAME; and a. FAME
b. Newly discovered evidence.
Filed within the time to appeal. Filed within 60 days from knowledge of the
judgment and Within 6 months from entry of
judgment.
If denied, the order of denial is NOT appealable; If denied, the order denying a petition for relief is
hence remedy is appeal from the judgment. NOT appealable; the remedy is appropriate civil
action under Rule 65.
Legal remedy. Equitable remedy.
Motion need not be verified. Petition must be verified.

A party who has filed a timely motion for new trial and\or reconsideration cannot file a petition for relief
after his motion has been denied. These remedies are exclusive of each other. It is only in appropriate
cases where a party aggrieved be the judgment has not been able to file a motion for new trial and\or
reconsideration that a petition for relief can be filed (Francisco vs. Puno, G.R. No. L-55694, October 23,
1981).

SECTION 3. TIME FOR FILING PETITION; CONTENTS AND VERIFICATION

Sixty (60) days after knowledge of the judgment AND not more than six (6) months after entry of such
judgment.

The two periods for filing of a petition for relief are not extendable and never interrupted (i.e. filing of
petition for certiorari). Both periods must be complied with (Phil. Rabbit Bus Lines, Inc. v. Arciaga G.R.
No. 29701, Mar. 16, 1987).

Forms and Contents of the Petition

1. The petition for relief must be verified;
 2. The petition must be accompanied by an affidavit showing the FAME relief upon; and
3. The affidavit of merit accompanying the petition must also show the facts constituting the
petitioner’s good and substantial cause of action or defense as the case may be.
Affidavit of Merit is one which recites the nature and character of fraud, accident, mistake or excusable.
Negligence (FAME) on which the motion is based.

Instance When an Affidavit of Merit is Not Necessary

1. Where there is no jurisdiction over the defendant;
2. Where there is no jurisdiction over the subject matter;
3. Where judgment was taken by default;
4. Where judgment was entered by mistake or was obtained by fraud; or
5. Other similar cases.

SECTION 4. ORDER TO FILE AN ANSWER

This remedy precludes the issuance of summons upon its filing. If the petition is sufficient in form and in
substance, the court shall issue an order requiring the adverse parties to answer within 15 days from
receipt thereof.

Failure to file answer does not warrant declaration of default.

SECTION 5. PRELIMINARY INJUNCTION PENDING PROCEEDINGS

Rule: Execution of judgment is not stayed UNLESS a writ of preliminary injunction is issued by the court.

Upon filing of the Petition:

1. The court in which the petition is filed may grant such PRELIMINARY INJUNCTION as may be
necessary for the preservation of the right of the parties, upon the filing by the petition of a
bond is favor of the adverse party.
2. Such injunction shall NOT DISCHARGE ANY LIEN which the adverse party may have acquired
upon the property of the petitioner.

SECTION 6. PROCEEDINGS AFTER ANSWER IS FILED

Two Hearings under Rule 38

1. Hearing to determine whether the judgment should be set aside; and
2. If in the affirmative, a hearing on the merits of the case.

SECTION 7. PROCEDURE WHERE THE DENIAL OF AN APPEAL IS SET ASIDE

Remedies if Rule 38 No Longer Available

1. Petition for Annulment of Judgment under Rule 47; and
2. A direct or collateral attack if judgment is void ab initio for lack of jurisdiction.

Note: Under A.M. No. 08-8-7 SC, otherwise known as the RULE OF PROCEDURE FOR SMALL CLAIMS
CASES a Motion for New Trial or Reconsideration (Rule 37), and a Petition for Relief from Judgment
(Rule 38) are prohibited pleadings.
Both remedies, likewise, are prohibited pleadings under the RULE ON SUMMARY PROCEDURE.

RULE 39. EXECUTION SATISFACTION AND EFFECTS OF JUDGMENTS

Execution is a process provided by la for the generally by the prerailing party enforcement of a final
judgment.
Against Whom Issued: Execution can only issue against a party and not against one who has not had his
day in court.

Writ of Execution is judicial writ issued to an officer authorizing him to execute the judgment of the
court.

Essential Requisites of a Writ of Execution

1. A writ of execution to be valid, must conform strictly to the decision or judgment which gives it
life; and
2. It CANNOT VARY the terms of the judgment it seeks to enforce.

Final Judgment or Order is one which disposes of the whole subject matter or terminates the particular
proceedings or action leaving noting to be done by the court but to enforce by execution what has been
determined.

Conditions for Compulsory Claim

1. If a judgment disposed already of the action or proceeding then can be executed;
2. The period to appeal has been filed taken from judgment.

Test to Determine Whether a Judgment or Order is Final or Interlocutory

If the judgment or order leaves nothing more for the court to do with respect to the merits of the case,
it is FINAL ORDER. Otherwise, it is an INTERLOCUTORY ORDER.

CLASSES OF EXECUTION
A. As to their nature:
1. Compulsory execution – known as Execution as a Matter of Right (Section 1)
2. Discretionary execution – known as Execution Pending Appeal (Section 2)
B. As to how it is enforced (Section 6):
1. Execution by motion
2. Execution by independent action

 PVB vs. CA
- Properties at the bank cannot be levied upon when the bank is under receivership.
- Judgment cannot be enforced.

SECTION 1. EXECUTION UPON JUDGEMNTS AND FINAL ORDERS

Execution as a Matter of Right

1. On motion on the court of origin;
2. Upon a judgment or order that disposes of the action or proceeding;
3. Upon expiration of the period to appeal there from and NO appeal has been dully perfected.
Instances where execution is a matter of right:
1. No appeal, judgment is final;
2. CA affirms the RTC’s judgment.

Execution of Judgment

Execution is a matter of fact after Discretionary execution upon

expiration of period to appeal and good reasons states in a special
no appeal is perfected. order after due hearing.

Sheriff enforces writ of execution.

Losing party is made to indemnify thru:

1. Payment with interest;

2. Levy and sale of personal property;
3. Levy and safe of real property;
4. Delivery of personal and real property.

General Rule: It is a matter of right on the part of the winning party. The court cannot refuse execution.
Unless: (I – NEED – U)
1. Where the judgment turns out to be incomplete or conditional;
2. Judgment novated by parties;
3. Equitable grounds like a change in situation of the parties which makes execution inequitable;
(Supervening fact doctrine)
4. Execution is enjoined (e.g Petition for Relief from judgment of Annulment of Judgment with TRO
or writ preliminary injunction)
5. Judgment has become dormant; except support which can be executed by motion
6. Execution is unjust or impossible.

Note: Issuance of the corresponding writ of execution upon a final and executor judgment is a
ministerial duty of the court to execute which is compellable by mandamus. (Ebero vs. Cañizares, 79
Phil. 152)

Take note that for the supervening event to apply, the supervening event must happen after the
judgment has become final and executor.

Instances where execution is a matter of right:

1. Section 1, paragraph 1 – no appeal; judgment becomes final;
 2. Section 1, paragraph 2 – there is an appeal; once the CA judgment becomes final;
3. Section 4 – judgment in an action for injunction, receivership, accounting, support, judgment
declared to be immediately executor; and
4. Rule 70 – Judgment in Forcible Entry and Unlawful Detainer cases.

Quashal of Writ of Execution when Proper: (C- WWIDSS)

1. A change in the situation of the parties render execution inequitable;
2. Issued against the wrong party;
3. Issued without authority
4. Improvidently issued
5. Defective in substance;
6. Judgment already satisfied; and
7. The controversy was never submitted to the court.

General Rule: The dispositive portion of the decision is the part that becomes the subject of execution.

Executions:
1. Where there is ambiguity, the body of the opinion may be referred to for purposes of construing
the judgment because the dispositive part of a decision must find support from the decision’s
ratio decidendi (Mutual Security Ins. Corp. vs. CA, GR No. L-47018, September 11, 1987); and
2. Where extensive and explicit discussion and settlement of the issue is found in the body of the
decision (Wilson Ong Ching Kian Chung, et al vs. Chinese National Cereals Oil and Foodstuffs
Import and Export Corp., et al., G.R. No. 131502, June 8, 2000).

Note: When the writ of execution varies the terms of the dispositive portion, the defeated party CAN
FILE:
1. Motion to quash the writ of execution, if denied; and
2. File petition for ceritoriari under Rule 65 with prayer for TRO (Albano, Remedial Law Reviewer).

SECTION 2. DISCRETIONARY EXECUTION

Discretionary Execution Execution as a Matter of Right

May issue before the lapse of period to appeal, Period to appeal has already lapsed and no appeal
and even during the appeal. is perfected.
Discretionary upon the court; there is inquiry on Ministerial duty of the court PROVIDED there is no
whether there is GOOD REASON for execution. supervening events.

Execution Pending Appeal

It can order the execution of judgment pending appeal for good reasons.

By the Trial Court

May also do so in the exercise of its residual jurisdiction under Rule 41 and 42.

Grounds:
1. Insolvency of the judgment debtor; and
2. Wastage of asset by judgment debtor.
The court may, in this discretion, order an execution before the expiration of the time within which to
appeal PROVIDED:
 1. There is a motion for execution filed by the winning party;
2. There is notice of said motion to the adverse party; and
3. There are good reasons stated in a special order after due hearing.

General Rule: NO RTO may be issued by a co-equal.

Except: Upon posting of the band:
1. When necessary of the rights of parties or third-party is affected (Rule 38, Sec 5);
2. Where is an action for annulment of judgment of RTC filed with CA.

“The requirement of good reason is important and must not be overlooked, because of the judgment is
executed and, on appeal, the same is reversed, although there are provisions for restitution, oftentimes
damages may arise which cannot be fully compensated. Accordingly, execution shall be granted only
when these considerations are clearly outweighed by superior circumstances as a security for their
existence.” (City of Bacolod vs. Enriquez, 101 Phil. 644).

Examples of good reasons:

1. When there is danger of the judgment becoming INEFFECTUAL .(Scottish Union vs. MAcadaeg,
91 Phil. 891);
2. OLD AGE;
3. Where the appeal is for the purpose of DELAY;
4. When the successful party files a BOND (but is not itself alone, a good reason);
5. Corporation which is ceased to operate.

An award for actual and compensatory damages may be ordered executed pending appeal, but not an
award for moral or exemplary damages.

Ratio: Moral and exemplary damages are dependent on the outcome of the appeal. While the amounts
of actual damages are fixed and certain (Ratio Communications of the Phils., Inc vs. Lantin, G.R No. L-
59311, January 21, 1935).

SECTION 3. STAY OF DISCRETIONARY EXECUTION

The party against whom an execution is directed may file a supersedeas bond to stay decretionary
execution.

Supersedeas Bond is one filed by a petitioner and approved by the court before the judgment becomes
final and executor and conditioned upon the performance of the judgment appealed from in case it be
affirmed wholly or in part.
 Supersedeas bond guarantees satisfaction of the judgment in case of affirmance on appeal. It
does not answer for damage to property pending the appeal.

General Rule: An order of execution is NOT appealable otherwise there would be no end to the litigation
between the parties.

Requisites:
1. There must be a motion filed by the prevailing parties;
2. Notice of the motion given to the adverse party;
 3. Good reason to execute to be stated in a special order after due hearing.

Exceptions:
1. When the terms of the judgment are not very clear; and
2. When the order of the execution varies with the tenor of the judgment.

Where to file a motion for execution pending appeal:

1. Trial Court
- CONDITIONS – [a] no final judgment [b] in possession of /not transmitted the
records
2. CA (TC losses the jurisdiction)

SECTION 4. JUDGMENTS NOT STAYED BY APPEAL

Rule: Judgment is stayed by appeal.

Exceptions: Instances when judgment is immediately executor: (IRASO)

1. Injunction;
2. Receivership;
3. Accounting;
4. Support; and
5. Such other judgments declared to be immediately executory unless otherwise ordered by the
trial court e.g. A judgment is forcible entry or unlawful detainer when favorable to the plaintiff
(Sec. 19, Rule 70).

The REASON for the non-stay of judgment for support is because support is immediately needed and its
delay may unduly prejudice the one in need of it.

Note: the rule on immediate execution of judgment in an injunction case does not apply to a judgment
in an action for prohibition (Embroidery & Apparel Control Board vs. Cloribel, June 20 1967).

Two Types of Judgment

1. Ordinary – orders the defendant to pay money or to deliver personal property
2. Special – requires defendant to perform an act other than payment of money delivery of
property.

How court losses jurisdiction:

- Appeal to CA (RTC)
- Filing of notice of appeal does not loss jurisdiction on the court of jurisdiction

SECTION 5. EFFECT OF REVERSAL OF EXECUTED JUDGMENT

If reversed totally or partially, or annulled (Rule 47), on appeal otherwise, the trial court may, on motion,
issue orders of restitution or reparation of damages as equity and justice may warrant under the
circumstances.
SECTION 6. EXECUTION BY MOTION OR INDEPENDENT ACTION

Modes of Enforcement
1. By motion within 5 years from date of its entry;
2. By independent action for revival of judgment after five (5) years from entry AND before it is
barred by statute of limitations which is ten (10) years from entry under Art. 1144 (3) of Civil
Code (This action is a personal one and not quasi in rem).

Note: The independent action to revive judgment will not necessary be filed with the same court that
decided the case. It shall be filed in the RTC as one incapable of pecuniary estimation. It must also satisfy
requirements o venue in Rule 4.

A DORMANT judgment is one that was not executed within five (5) years.

 Five (5) – year period may be extended if delay is traceable to the fault of the judgment debtor.
 A revived judgment is a new judgment thus another five or ten (5/10) – year period to execute
and revive is given the party. The second revived judgment can again be enforced under Section
6.

The five (5) – year period is to be counted not from the date the judgment became final in the sense
that no appeal could be taken there from but when it became executor in the sense that it could already
be enforced (Tan Ching Ji vs. Mapalo, G.R No. 21933, Feb. 22, 1971).

SECTION 6. DOES NOT APPLY IN:

1. Judgment support ;
2. Contempt Orders in authorized reentry on the land by an ejected defendant;
3. Issuance of Writ of Possession; and
4. Special Proceedings (i.e. land registration cases)

Revival of Judgment in Sec. 6 Revival of Judgment in Sec. 34

It is an independent action.
Assumes that there is no execution within the first
five (5) years.
The party who files the action is the judgment
creditor himself, or his assignee, or successor-in-
interests.
Filed to lapse of the five (5) years period.
It is carried out through the filing of a motion in
court.
Assumes that the judgment is executed within the
first five (5) years.
The party who files such motions is not the original
judgment creditor but is the highest bidder in the
publication auction sale.
Filed because the movant is deprived of the
property purchased.

SECTION 7. EXECUTION IN CASE OF DEATH OF PARTY

A. In case of death of the JUDGMENT OBLIGEE: Execution will issue in any case.
 B. In case of death of JUDGMENT OBLIGOR
1. BOFORE LEVY:
 Execution will issue if the action is for the recovery of real or personal property or
any lien thereon.
 Execution will NOT issue if the action is for the recovery of a sum of money. In this
situation, the judgment oblige should file a claim against the estate of the judgment
obligor under Rule 86.
2. AFTER LEVY
 Execution will issue in any case.

Ratio: After a valid levy, the property is already separated from the state of the deceased and is deemed
IN CUSTODIA LEGIS.

SECTION 8. ISSUANCE, FORM AND CONTENTS O A WRIT EXECUTION

Note: Appeal is the remedy for an order DENYING the issuance of a writ execution.

However, an order GRANTING the issuance of the writ of execution of a final judgment is not appealable
under Rule 41; the remedy is to file an appropriate special civil action under Rule 65.

SECTION 9. EXECUTION O JUDGMENTS FOR MONEY, HOE ENFORCED

If Award is for Payment of Money:

1. Immediate payment on demand;
2. Satisfaction by levy;
3. Garnishment of debts and credits.

The judgment obligor shall pay in cash, or certified bank check payable to the judgment oblige or any
other form of payment acceptable in the oblige (Sec. 9 [a]).

Levy
It is an act by which an officer sets apart or appropriates apart of the whole property of the judgment
debtor for purposes of the execution sale.

Levy is the pre-requisite to the auction sale. In order that an execution sale may be valid, there must be
a previous valid levy. A sale not preceded by a valid levy is void and the purchaser acquires no title.
(Valenzuela vs. De Aguillar, L-18083-84, May 31, 1963)

 The sheriff can validly levy any property of the judgment obligor which may be disposed
of for value but not exempt from execution. The judgment obligor has the option to
choose which property to levy upon.
 If he does not exercise the option, the officer shall FIRST levy on the personal properties,
if any, and then on the real properties if the personal properties are insufficient to
answer for the judgment (Sec. 9 [b]).
 Real or personal property or any interest in either may be levied upon in like manner
and with like effect as under the writ of attachment.
  Real Property: by filing with the register of Deeds a copy of the order together with the
description of the property and a notice that it is attached. (Section 7 [a] Rule 57).
 Personal Property: If capable of manual delivery, by taking and safely keeping it in the
custody of the sheriff after issuing the corresponding receipt therefore (Section 7 [b]
Rule 57)

Garnishment
It is an act of appropriation by the court when the property of debtor is in the hands of a third person.
 A specie of attachment for reaching any property or credits pertaining or payable to a judgment
debtor.
 The sheriff may levy on debts due the judgment obligor and other credits, including banks
deposits, financial interests, royalties, commissions and other personal property not capable of
manual delivery in the possession or control of third parties (Sec. 9 [c]).
 The garnishee of the 3rd person who is in the possession of the property of the judgment debtor
is deemed a FORCED INTERVENOR.

Attachments Garnishment
If refers to corporeal property in the possession in It refers to money, stocks, credits and other
the judgment debtor. incorporeal property which belong to the
judgment debtor but it is the possession or under
the control of a third person.

SECTION 10. EXECUTION OF JUDGMENTS FOR SPECIFIC ACT

1. Conveyance, delivery of deeds, or other specific acts, vesting title;
2. Sale of real or personal property;
3. Delivery or restitution of real property;
4. Removal or improvements on property subject of execution;
5. Delivery of personal property.

A. If the party REFUSES TO VACATE THE PROPERTY:

The remedy in NOT CONTEMPT. The Sheriff must oust the party. But if demolition is involved,
there must be special order.

B. If the party REFUSES TO DELIVER:

A writ of execution directing the sheriff to cause the defendant to vacate is in the nature of
habere facias possessionem and authorizes the sheriff to break open the premises where there
is no occupant therein (Arcadio vs. Ylagan, A.C No. 2734, July 30, 1986).

C. Where the party REFUSES TO COMPLY:

The court can appoint some other person at the expense of the disobedient party and the act
done shall have the same effect as if the required party performed it.

General Rule: The judgment debtor CANNOT be cited in contempt of court. Generally, contempt is not
a remedy to enforce a judgment.

Exceptions:
 1. Refusal to perform a particular act or Special Judgment under Sec. 11 where he may be cited in
contempt; and
2. In case of the provisional remedy of support pedente lite under Rule 61 the judgment debtor
may still be cited for contempt even if the decision is not a special judgment and requires the
latter to pay money.
 Potagon vs. Jimenez tools and implements refers to instruments of husbandry or manual labor
needed loyan artisan or laborer to obtain his living.

Property Exempted by the law:

1. Property obtained pursuant to free patent application homestead;
2. Under Social Legislation;
3. Under CARP.

SECTION 11. EXECUTION OF SPECIAL JUDGMENTS

Special Judgment is one which can only be complied with by the judgment obligor because of his
personal qualifications or circumstances.

When judgment require the performance of any act other than judgment for money and judgments for
special act, a certified copy of the judgment shall be attached to the writ.

The writ of execution shall be served upon the party required to obey the same and such party may be
punished for CONTEMPT if he disobeys.

SECTION 12. EFFECT OF LEVY ON EXECUTION AS TO THIRD PERSONS

The levy on execution creates a lien in favor of the judgment oblige in such party at time of the levy,
subject to liens and encumbrances then existing.

EXCEPT as otherwise expressly provided by law, the following party, and no other, shall be exempt from
execution:
1. The judgment obligor’s family home as provided by law, or the homestead in which he resides,
and land necessarily used in connection therewith;
2. Ordinary tools and implements, personally used by him in his trade , employment, or livelihood;
3. Three horses, or three cows, or three carabaos, or three beasts of burden, such as the judgment
obligor may select necessarily used by him in his ordinary occupation;
4. His necessary clothing and articles for ordinary personal use, excluding jewelry;
5. Household furniture and utensils necessary for housekeeping, and used for the purpose by the
judgment obligor and his family, such as the judgment obligor may select, of a value not
exceeding 100,000 pesos;
6. Provisions for individual or family use sufficient for 4 months;
7. The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists,
engineers, surveyors, clergymen, teachers, and other professionals, not exceeding 300,000
pesos in value;
8. One fishing boat and accessories not exceeding the total value of 100,000 pesos owned by a
fisherman and by the lawful used of which he earns hi livelihood; So much at the salaries, wages
or earnings of the judgment obligor for his personal services within the 4 months proceeding the
levy as are necessary for the support of his family;
 9. Lettered gravestones;
10. Monies, benefits, privileges, or annuities accruing or any manner growing out of any life
insurance;
11. The right to receive legal support, or money or property obtained as such support, or any
pension or gratuity from the Government;
12. Properties specially exempted by law.

But no article or species of property mentioned in this section shall be exempt from execution issued
upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage hereon.

SECTION 14. RETURN OF THE WRIT OF EXECUTION

The lifetime of such writ corresponds to the period within which the judgment may e enforced by
motion, that is, within 5 years from entry thereof.

SECTON 15. NOTICE OF SALE OF PROPERTY ON EXECUTION

Notice requirement
A. If perishable property:
By posting written notice of the time an place of the sale in three (3) public places, preferably in
conspicuous areas of the municipal or city hall, post office and public market where the sale is to
take place, for such time as may be reasonable, considering the character and condition of the
property.
B. Other personal property:
By posting similar notice in three (3) public places above-mentioned for not less than five (5)
days;
C. If real property:
By posting for 20 days in three (3) public places particularly describing the property and stating
where property is to be sold, and if the assessed value of the property exceeds P50,000, by
publishing a copy of the notice once a week for two (2) consecutive weeks in one (1) newspaper
selected by raffle (whether in English , Filipino, or any major regional language published, edited
and circulated or, in the absence thereof, having general circulation in the province or city).

Note: in ALL CASES, a written notice of the sale shall be given to the judgment obligor, at least three (3)
days before the sale, except as provided in par (a) hereof where notice shall be given at any time given
before the sale.

SECTON 16. PROCEEDINGS WHERE PROPERTY CLAIMED BY THE THIRD PERSON

Remedies of a third-party claimant

1. Summary hearing before the court which authorized the execution;
2. TERCERIA or third-party claim filed with the sheriff;
3. Action for damages on the bond posted by judgment creditors; or
4. Independent reinvindicatory action.

 The remedies are cumulative and may be resorted to by the third party claimant independently
of or separately from the others.
  If the winning party files a bond, it is only that the sheriff can take the property on his
possession. IF THERE IS NO BOND, the sale cannot proceed.

Note: The officer shall not be liable for damages to any third party claimant if such bond is filed for the
taking or keeping of the property.

However, the judgment obligee can claim damages against a third-party claimant who filed a frivolous or
plainly spurious claim, and judgment oblige can institute proceedings therefore in the same or separated
action.

Third-party claim Third-party complaint

PLEADING filed by a defendant against the third AFFIDAVIT made by a third person who claims to
person not a party to the action for contribution be entitled to the property in the custody of a
indemnity, subrogation, or any other relief. sheriff.
Filed by third-party CLAIMANT. Filed by a third-party PLAINTIFF.

The remedies of a third person whose property was seized by the sheriff to answer obligation of
judgment obligor:
1. Invoke the supervisory of the court which SEMI-INTERVENTION, EVENGELISTA CASE authorized
the execution;
2. Third-party claim; and
3. A separate civil action (reindi vicatory action).

SECTION 17. PEBALTY FOR SELLING WITHOUT NOTICE, OR REMOVING, OR DEFACNG NOTICE

The following are liable for actual and punitive damages:

1. An officer selling without the notice prescribed by Sec. 15; and
2. A person willfully removing or defacing the notice posted, if done before the sale, or before the
satisfaction of judgment if the satisfied before the sale.

SECTION 18. NOLE SALE IF JUDGMENT AND COSTS PAID

At any time before the sale of the property on execution, the judgment obligor may prevent the sale BY
PAYING the amount required by the execution and the cost that have been incurred therein.

SECTION 19. HOW PROPERTY SOLD ON EXECUTION; WHO MAY DIRECT MANNER AND ORDER OF SALE

All sales of property under execution must be made:

1. At public auction;
2. To the highest bidder;
3. To start at the exact time fixed in the notice.
 After sufficient property has been sold to satisfy the execution, NO more shall be sold and
any EXCESS shall be promptly delivered to the judgment obligor or his authorized
representative, unless otherwise directed by the judgment or order of the court.

Ordinary Sale on Execution Sale on Judicial Foreclosure of Mortgage

Need not be confirmed by the court Must be confirmed by the court in order to divest

Right for redemption exists
Title acquired after the expiration of the
redemption period when final deed of conveyance
is executed
the rights in the property of the parties and to vest
the right in the purchaser
There is no right of redemption, except for the
mortgagor where the mortgagee is a bank or
banking institution
Titled acquired upon the confirmation and
registration of the foreclosure sale

SECTION 20. REFUSAL OFPURCHASER TO PAY

The officer may AGAIN SELL the property to the highest bidder and shall not be responsible for any loss
occasioned thereby.

But the court may order the refusing purchaser to pay the court the amount of such loss, with costs, and
may punish him for contempt if he disobeys the order.

SECTION 21. JUDGMENT OBLIGEE AS PURCHASER

When the purchaser is the judgment oblige, and no third party claim has been filed, he need not pay the
amount of the bid if it does NOT exceed the amount of his judgment. If it does, he shall pay only the
excess.

SECTON 22. ADJOURMENT OF SALE

 IF with written consent of the judgment obligor and oblige: To any date and time agreed
upon.
 IF without such agreement: From day to day if it becomes unnecessary to do so for the lack
of time.
SECTION 23. CONVEYANCE TO PURCHASER OR PERSONAL PROPERTY CAPABLE OF MANUAL DELIVERY

When purchaser pays the purchase price, the personal property, capable of manual delivery, must be
delivered to him and IF DESIRED execute and deliver to him a certificate of sale.

SECTION 24. CONVEYANCE TO PURCHASER OR PERSONAL PROPERTY NOT CAPABLE OF MANUAL

DELIVERY

In this case, the officer MUST execute and deliver to a purchaser a certificate of sale.

SECTION 25. CONVEYANCE OF REAL PROPERTY; CERTFICATE THEREOF GIVEN TO PURCHASER AND FILD
WITH REGISTRY OF DEEDS

CONTENTS of the certificate of sale:

1. A particular description of the real property sold;
2. The price paid for each distinct lot or parcel;
3. The whole price paid by him; and
 4. A statement that the right of redemption expires one (1) year from the date of the registration
of the registration of the certificate of sale.

Note: Confirmation of the sale is not needed unlike in judicial foreclosure of mortgage. The certification
of sale is merely provisional (Raymundo vs. Sunico, G.R No. 8241, Sept. 27, 1913).

May the validity of an auction sale be attacked?

General Rule: NO because of the presumption of regular performance of duty by the sheriff.

Exception:
1. When the nature of irregularity or from intrinsic facts, injury insulted therefrom (Navarro vs.
Navarro, 76 Phil. 122).
2. When the price obtained is shockingly obtained at a resale (Barrozo vs. Macadaeg, 83 Phil. 378).

Exception to the Exception:

The rule that you can question the validity of the auction sale if the price obtained is shockingly
inadequate does not apply when the property sold is real property.

SECTION 26. CERTIFICATE OF SALE WHERE PROPERTY CLAIMED BY THIRD PERSON

The certificate of sale to be issue shall make express mention of the existence of such third-party claim.

SECTION 27 & 28. REDEMPTION

The right of redemption is transferable and may be voluntarily sold, but it can be levied upon by the
judgment creditor so as to deprive the judgment debtor of any further rights to the property.

Right of Redemption:
1. Personal Property – NONE; Sale is ABSOLUTE.
2. Real Property – There is a right of redemption.

Who may redeem (Sec. 27):

1. Judgment obligor, or his successor in interest, in the whole or in any part of the property; OR
2. Redemptioner who is a creditor having a lien by virtue of an ATTACHMENT, JUDGMENT or
MORTGAGE on the property sold, SUBSEQUENT to the lien under which property was sold.

Note: If his lien is PRIOR to the judgment, he is not a redemptioner because his interest I his lien is fault
protected (relate to Section 12).

When can redemption be made (Sec. 28):

A. BY THE JUDGMENT OBIGOR:
Within one (1) year from the date of registration of the certificate of sale.
B. BY THE REDEMPTIONER
Within one (1) year from the date of registration of the certificate of sale if he is the first redemptioner;
or Within sixty (60) days from the last redemption, if he be a subsequent redemptioner, provided by the
judgment debtor has not exercised his right of redemption.
BUT, in all cases the redemption obligor shall have the entire period of one (1) year from the date of the
registration of the sale to redeem the property. If the judgment obligor redeems, no further redemption
is allowed and he is restored to his estate.

The period of redemption is NOT suspended by an action to annul the foreclosure sale.

Note: the periods for redemption are not extendible or interrupted. The parties may, however agree on
a longer period in such case it would be a conventional redemption (Lazo vs. Republic Surety &
Insurance Co., Inc., G.R. No. 27365, Jan. 30, 1970).

Redemption Price (Sec. 28)

A. By the Judgment Obligor:
1. Purchase price;
2. 1% interest thereon, up to the time of redemption;
3. Any amount of assessments or taxes which the purchaser must have paid thereon after
purchase and interest on such last named amount at the same rate; and
4. IF the purchase be also a creditor having a prior lien to that of the redemptioner, other than
the judgment under which such purchase was made, the amount of such other lien, with
interest.
B. By the Redemptioner:
1. Amount paid on the last redemption;
2. 2% interest thereon;
3. Any amount of assessments or taxes which the last redemptioner may have paid thereon
after redemption by him with interest on such last-named amount; and
4. Amount of any liens held by said last redemptioner prior to his own, with interest.

 The redemption price for subsequent redemption shall be the same (redemption price becomes
higher and higher).

May redemption be paid in any form other than cash?

YES. The rule is construed liberally in allowing redemption (to aid rather than defeat the right) and it has
been allowed in the case of a cashier’s check, certified bank checks and even checks.

The offer to redeem must be accompanied with a bona fide tender of delivery of the redemption price.

HOWEVER, a formal offer to redeem with a tender is not necessary where the right to redeem is
exercised through the filing of a complaint to redeem in the courts, within the period to redeem.

Note: The period for redemption in Sec. 18 are not extendible or interrupted. The parties may, however,
agree on a longer period of redemption but in such case, it would be a matter of conventional
redemption (Lazo vs. Republic Surety & Insurance Co., G.R. No. 2765, Jan. 30, 1970).
SECTION 29. EFFECT OF REDEMPTION BY JUDGMENT OBLIGOR, AND A CERTIFICATE TO THE DELIVERED
AND RECORDED THEREUPON; TO WHOM PAYMENTS ON REDEMPTION MADE

Redemption on the property sol under a foreclosure sale by the judgment mortgagor eliminated from
his title thereto the lien created by the levy on attachment or the registration of the mortgage thereon
(Javellana v. Mirasol, G.R. No. L-14881, February 5, 1920).

SECTION 30. PROOF REQUIRD OF REDEMPTION

Redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with
his notice of the officer:
1. A copy of the judgment or final order certified by the clerk of court wherein the judgment of
final order is entered; OR
2. If he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by
the RD; OR
3. An original or certified copy of any assignment necessary to establish his claim; OR
4. An affidavit executed by him or his agent showing the amount then actually due on the lien.

SECTION 31. MANNER OF USING PREMISES PENDING REDEMPTION; WASTE RESTRAINED

SECTION 32. RENTS, EARNINGS AND INCOME OF PROPERTY PENDING REDEMPTION

Rights of the judgment debtor: (RE-UNUC)

1. Remain in possession of the property;
2. Cannot be ejected;
3. Use the money in the same manner it was previously used;
4. Make necessary repairs to building thereon while he occupies the property;
5. Use it in ordinary course of husbandry (Sec.31); and
6. Collect rents, earnings, and income derived from the property until the expiration of period of
redemption (Sec.32).

SEECTION 33. DEED AND POSSESSION TO BE GIVEN AT EXPIRATION OF REDEMPTION PERIOD; BY

WHOM EXECUTED OR GIVEN

The PURCHASER is entitled to a CONVEYANCE AND POSSESSION of the property if there is no

redemption mad within 1 year from the date of the registration of the certification of sale, or LAST
REDEMPTIONER whenever 60 days is elapsed and no other redemption has been made.

He is substituted to and acquires all the rights, title, interest and claim of the judgment obligor to the
party at the time of levy.

Two (2) documents which the sheriff executes in case of real property:
1. CERTIFICATION OF SALE – After the auction sale, he will execute in your favor the certificate of
sale, by the time you register that, you start counting the one year.
2. DEED OF CONVEYANCE – if one (1) year there is no redemption, a deed of conveyance is
executed. (Section 33)
  The deed of conveyance is what operates to transfer to whatever rights the judgment debtor
had in the property. The certificate of sale after execution sale merely is a memorial of the fact
of sale and does not operate as a conveyance.
 The purchaser acquires no better right than what the judgment debtor had in the property
levied upon. Thus if the judgment debtor had already transferred the property executed prior to
the levy and no longer has an interest in the property, the execution purchaser acquires no right
(Pacheo v. CA. G.R No. L-48689, August 31, 1987).

When a third person is in possession: The procedure is for the court to order a hearing and determine
the nature of such adverse possession.

SECTION 34. RECVERY OF PRICE IF SALE IS NOT EFFECTIVE; REVIVAL OF JUDGMENT

The purchaser may recover the purchase price when:

1. The purchaser of his successor-in-interest FAILS TO RECOVER POSESSION of the property; or
2. Is evicted due to:
a. Irregularities in the proceedings concerning the sale; or
b. The judgment has been reversed or set aside; or
c. The property sold was exempt from execution; or
d. A third person has vindicated his claim to the property.

When the safe was not effective under the circumstances in this section, the purchaser may:
1. File the motion in the same action or file a separate action to recover from the judgment
creditor the price paid;
2. File a motion for revival of judgment in his name against the judgment debtor; or
3. Bring an action to recover possession of property.

SECTION 35. RIGHT TO CONTRIBUTION OR REIMBURSEMENT

Contribution and reimbursement may be obtained in separate action, unless cross-claims have been
filed and adjudicated in the same action, in which case, execution may issue to compel contribution or
reimbursement (Feria, Civil Procedure Annotated, vol. 2, 2001 Ed., p. 108).

Remedies of the Judgment Creditor in Aid of Execution or If judgment is not fully Satisfied
1. If the execution is returned unsatisfied, he may cause examination of the judgment debtor as to
his property and income. (Sec. 36)
2. He may cause examination of the debtor of the judgment debtor as to any debt owed by him or
to any property of the judgment debtor in his possession. (Sec.37)
3. If after examination, the court finds property of the judgment debtor either in his own hands or
that any person, the court may order the property applied to the satisfaction of the judgment.
(Sec. 37)
4. A party of other person may be compelled, by an order or subpoena, to attend before the court
or commissioner to testify as to provided in Sec. 36 & 37.(Sec. 38)
5. If the court finds the earnings of the judgment debtor are more than sufficient for his family’s
needs, it may order payment in installments.(Sec. 40)
6. The court may appoint receiver for the property of the judgment debtor not exempt from
execution or forbid a transfer or disposition or interference with such property. (Sec. 41)
 7. If the court finds that the judgment debtor has an ascertainable interest in real property either
as mortgagor, mortgagee, or otherwise, and his interest can be ascertained without
controversy, the court may order the sale of such interest. (Sec. 42)
8. If the person alleged to have the property of the judgment debtor or be indebted to his claims
an adverse interest in the property, or denies the debt, the court may authorize the judgment-
creditor to institute an action to recover the property, forbid its transfer and may punish
disobedience for contempt. (Section 43)

SECTION 44. ENTRY OF SATISFACTION OF JUDGMENT BY CLERK OF COURT

SECTION 45. ENTRY OF SATISFACTION WITH OR WITHOUT ADMISSION

SECTION 46. WHEN PRINCIPAL BOUND BY JUDGM,ENT AGAINST SURETY

The principal is bound by the same judgment from the time he has notice of the action or proceeding
and has been given an opportunity at the surety’s request, to join the defense.

SECTION 47. EFFECT OF JUDGMENT OR FINAL ORDERS

This refers to judgments which are considered as conclusive and may be rebutted directly by means of
relief of judgment or annulment of judgment or indirectly by offering them in evidence under the parole
evidence rule.

Two Parts
1. Res Judicata – also known as Bar by Former Judgment or Direct Estoppel by Judgment. It covers
paragraph (a) and (b) of Section 47.

In Rem (Paragraph A) In Personam (Paragraph B)

The decision is conclusive upon title of the thing,
the will or administration or the condition, status
or relationship of the person.
e.g land registration cases
The judgment or final order is conclusive between
parties and their successors in interest, litigating
for the same thing and under the same title and in
the capacity.
e.g accion reinvindicatoria

2. Conclusiveness of Judgment – also known as Estoppel by Verdict, or Estoppel by Record, or

Collateral Estoppel by Judgment or Preclusion of Issues or Rule of Auter Action Pendant. It
covers paragraph (c).

Public Policy Principle:

The inalterability of a final and executor judgment. The decisions of the court must be immutable at
some definite period of time, no matter hoe erroneous a judgment may be. Otherwise, there would be
no end to litigation.

Res Judicata (A Matter Adjudged)

It is a rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive
as to the rights to the parties and their privies, and, as to them, constitutes an absolute bar to a
subsequent action involving the same claim, demand, or causes of action (Black’s Law ofDictionary).
Requisites:
1. A FINAL judgment or order;
2. JURISDICTION over the subject matter and the parties by the court rendering it;
3. Judgment UPON THE MERITS;
4. Between the two cases:
a. There is identity of PARTIES; and
b. Identity of SUBJECT MATTER; and
c. Identity of CAUSE OF ACTION.

THERE IS AN IDENTITY OF CAUSE OF ACTION when the two actions are based on the same delict or
wrong committed by the defendant even if the remedies are different.

THERE IS IDENTITY OF PARTIES even if the defendant in the first case becomes the plaintiff, and vice-
versa (HSBC vs. Aldecoa & Co., G.R No. 8437, March 23, 1915).

Note: No res judicata in:

1. Revival of judgment
 Cause of action is for revival of dormant judgment.
2. Annulment of Judgment
 Cause of action is extrinsic fraud or lack of jurisdiction.
 Subject matter is the judgment itself.

Under the doctrine of res judicata, no matter how erroneous a judgment may be, once it
becomes final, it cannot be corrected.

Conclusiveness of judgment

The issues actually and directly resolved in a former suit cannot again be raised in any future case
between the same parties involving a different cause of action.

 It has the effect of preclusion only of issues.

 The parties in both actions may be the same but the causes of action are different.

Bar By Former Judgment Conclusiveness Of Judgment

There is identity of parties, subject matter and
causes of action.
The first judgment constitutes as an ABSOLUTE
BAR TO ALL MATTERS directly adjudged and those
that might have been adjudged.
It has the effect of preclusion of claims
There is ONLY identity of PARTIES AND SUBJECT
MATTER. ISSUE PRECLUSION
The first judgment is conclusive only as to matters
directly adjudged and actually litigated in the first
action. Second action can be prosecuted.
It has the effect of preclusion only of issues.

Doctrine of Law of the case-according to this principle, whatever is once irrevocably established as the
controlling legal rule or decision between the same parties in the case continues to be the law of the
case whether correct on general principles or not, so long as the facts on which such decision was
predicated continue to be the facts of the case before the court. (RCPI vs. Court of Appeals, G.R. No.
139763, April 26, 2006)
Note: This rule DOES NOT APPLY to resolutions rendered in connection with the case wherein no
rationale has been expounded on the merits of that action (Jarantilla vs. CA, G.R. No. 80194, Mar. 21,
1989).

Stare Decisis
It means the decision of the court should stand as precedents for future guidance.

 Voidable Judgment may be involved as Res judicata

SECTION 48. EFFECT OF FOREIGN JUDGMENT OR FINAL ORDERS

Public Policy Principle: A judgment by a court is enforceable only with its territorial jurisdiction.

Effect of Foreign Judgments

Provided that the foreign tribunal had jurisdiction:
1. In case of judgment against a specific thing, the judgment is conclusive upon the title to the
thing; or
2. In case of a judgment against a person, the judgment is presumptive evidence of a right as
between the parties and their successors-in-interest by a subsequent title.

There are two ways of giving effect to a foreign judgment: (a) an ordinary action to enforce the foreign
judgment may be filed in court or (b) it may be pleaded in an answer or a motion to dismiss (Herrera,
Remedial Law, Vol. ll, 2007 Ed., p. 531).

Note: In BOTH instances, the judgment may be repelled by evidence Of (JN CFC)
a. Want of jurisdiction;
b. Want of notice;
c. Collusion;
d. Fraud; or
e. Clear mistake of law or fact.

APPEAL

Three Modes of Appeal:

1. Ordinary Appeal (Rule 40 and 41)
a. Notice on appeal
b. Record on appeal
2. Petition for Review (Rule 42)
3. Appeal by Certiorari (Rule 45)

When is Appeal is A Matter of Right?

1. First appeal is a matter of right.

Except: In civil cases, first appeal is not a matter right if filed with Supreme Court.

2. In criminal cases, when the MTC imposes death penalty, the Court of Appeals shall
automatically review the judgment (Section 3(d) Rule 122). If the Court of Appeals finds that
 death penalty should be imposed, the CA shall not render judgment but certify and elevate
the case to the Supreme Court for review (Section 13(a) Rule 124).

Note: Only FINAL judgment or orders can be appealed as distinguished from interlocutory judgments or
orders which are not appealable.

RULE 40. APPEAL FROM MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL COURTS

Ordinary Appeal is an appeal by notice of appeal from a judgment or final order of a lower court on
questions of fact and law.

 The right to appeal is not a natural right or a part of due process. It is merely a statutory
privilege and may be exercised only in the manner and in accordance with the provisions of the
law (Producers Bank of the Philippines vs. CA, Gr. No. 126620, April 17, 2002).

Note: A question that was never raised in the court below cannot be allowed to be raised to the
first time to appeal, without offending basic rules of fair play, justice and due process
(Villanueva vs. Sps Salvador, G.R. No. 139436, January 25, 2006).

SECTION 1. WHERE TO APPEAL

Appeal to the RTC

Mode of Appeal-Notice of Appeal within fifteen (15) days from receipt of decision.

After an appeal to the RTC has been perfected, the MTC loses its jurisdiction over the case and any
motion for the execution of the judgment should be filed with the RTC.

Note: The Rule on Summary Procedure no longer applies when the case is on appeal.

SECTION 2. WHEN TO APPEAL

1. Within 15 days after notice of judgment or final order;

2. Where a record on appeal is required, within 30 days from notice of judgment or final order by
filing a notice of appeal and a record on appeal.

Note: Sec. 2 of Rule 40 provides that the period of appeal shall be interrupted by a timely motion for
new trial or reconsideration.

But, under the “Fresh Period Rule”, any party litigant may either file his notice of appeal within 15 days
from receipt of the RTC’s decision or file it within 15 days from receipt of the order denying his motion
for new trial or motion for reconsideration (Neypey vs. CA, G.R. No. 141524, September 14, 2005).

Ratio and Basis:

 Pursuant to its sole prerogative to amend procedural rules, the SC deems it necessary to charge
the afore-stated rule in order to standardize the appeal periods, provided in the Rules of Court,
to be counted from receipt of the order denying the new motion for new trial or motion for
reconsideration (whether full or partial or any final order or resolution) and to afford litigants
fair opportunity to appeal their cases.
The Fresh period shall apply to”
1. Rule 40
2. Rule 41
3. Rule 42
4. Rule 43
5. Rule 45

Note: No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.
But if the appeal requires the filing of a record on appeal, a motion for extension to submit record on
appeal is allowed.

SECTION 3. HOW TO APPEAL

A. By Notice of Appeal:

1. File a notice of appeal with the trial court;

2. The notice of appeal must indicate:
a. Parties;
b. Judgment or final order appealed from;
c. Material date showing timeliness of appeal.
3. A copy served on the adverse party;
4. Payment in full of docket fees and other lawful fees.

B.By Record on Appeal

For the following cases:

1. Special proceedings such as probate;
2. In such other cases where multiple appeals are allowed as in partition and in expropriation.

Ordinary Appeal Petition for Review

Matter of right. Discretionary
All the records are elevated from the court of No records are elevated unless the court
origin. decrees it.
Notice and record on appeal are filed with the Filed with the CA.
court of origin.
The case was decided by the RTC pursuant to The case was decided by the RTC pursuant to
its original jurisdiction. The case was originally its appellate jurisdiction.
filed in the RTC.

Material Data Rule

The notice of appeal must also be accompanied by a statement of the material dates showing the
timeliness of the appeal.

SECTION 4. PERFECTION OF APPEAL; EFFECT THEREOF

Governed by the provisions of Section 9, Rule 41.

SECTION 5. APPELLATE COURT DOCKET AND OTHER LAWFUL FEES

Payment of appellate court a docket fees is jurisdictional. Failure to do so is a ground for dismissal of
appeal (Sec. 1c Rule 50).

However, non-payment of docket fees does not automatically result in dismissal of appeal, the dismissal
being discretionary in the court if there are jurisdictions for non-payment (Fontanar vs. Bonsubre, G.R.
No. 56315, Nov. 25, 1986).

SECTION 6. DUTY OF THE CLERK OF COURT

Within 15 days from the perfection of the appeal, the clerk of court or the branch clerk of court of the
lower court shall transmit the original record or the record on appeal, together with the transcripts and
exhibits to the appellate court\RTC.

Civil Actions Period to Appeal Requisites for Appeal

1. Civil Action general 15 days Notice of appeal
2. SPL and Civil Actions 30 days Notice of appeal
where multiple appeal is Record on appeal
allowed.
3. Habeas Corpus 48 hrs. Notice of appeal

APPEAL FROM RTC TO MTC

Appeal decision of MTC by filing notice of appeal

and pay within 15 days from receipt of judgment.

15 days from perfection of appeal, MTC clerk

transmits record to RTC

Notice to parties that an appeal is being taken from

the decision of MTC

If uncontested, judgment is
entered in the book of
Within 15 days from notice to appeal: entries.

Appellant submits memorandum to the RTC

Appellant files his own memorandum 15 days from

Any party may appeal by filing
receipt of appellants’ memorandum.
a petition for review with the
CA.
SECTION 7. PROCEDURE IN THE REGIONAL TRIAL COURT

1. Upon receipt of the complete record or record on appeal, clerk of court of the RTC shall notify
the parties of such fact;
2. With 15 days from such notice, it shall be the duty of the appellant to submit a memorandum
which shall briefly discuss the errors imputed to the errors imputed to the lower court;
3. Upon the filing of the memorandum of the appellee, or the expiration of the expiration of the
period to do so, the case shall be considered submitted for decision.

Note: the requirement for the submission of appellants memorandum is a mandatory and compulsory
rule. Non-compliance therewith authorizes the dismissal of the appeal.

SECTION 8. APPEAL FROM ORDERS DISMISSING CASE WITHOUT TRIAL; LACK OF JURISDICTION

A. If the lower court dismissed the case without trial on the merits, RTC MAY:
1. Affirm, if ground of dismissal is lack of jurisdiction over the subject matter, the RTC, if it has
jurisdiction, shall TRY the case on the merits as if the case was originally filed therein;
2. Reverse, in which case, it shall remand the case for further proceedings.

B. If the case was tried on the merits by the lower court with jurisdiction over the subject matter:
 RTC shall not dismiss the case if it has original jurisdiction, but shall DECIDE the case, and
shall ADMIT amended pleadings or additional evidence.

SECTION 9. APPLICABILITY OF RULE 41

By virtue of this provision, the inferior courts also exercise residual jurisdiction in the same manner
provided under par. 5 Sec. 9 of Rule 41.

RULE 41. APPEAL FROM THE REGIONAL TRIAL COURTS

Note: As amendment by A.M. No. 07-7-12 SC, effective December 27, 2007

Three modes of appeal from decisions of the RTC

1. Ordinary appeal by writ of where judgment was rendered in a civil or criminal action by the RTC
in the exercise of original jurisdiction (Rule 41);
2. Petition for review, where judgment was rendered by the RTC in the exercise of appellate
jurisdiction (Rule 42);
3. Petition for review on certiorari to the Supreme Court (Rule 45).

The first mode of appeal, governed by Rule 41, is taken to the Court of Appeals on questions of fact and
law. The second mode of appeal, covered by the Rule 42, is brought to the Court of Appeals on
questions of fact and law. The third mode of appeal, provided for by Rule 45, elevated to the Supreme
Court only on questions of law.

Cases where multiple appeals are allowed:

1. Special proceeding;
 2. Actions for recovery of property with accounting;
3. Actions for petition of property with accounting;
4. Special civil actions for actions of eminent domain (expropriation);
5. Special civil actions for the closure of mortgage. (Roman Catholic Archbishop of Manila vs. CA,
258 SCRA 186)

SECTION 1. SUBJECT OF APPEAL

Appealable Cases:
1. Judgments or final orders that completely disposes of the case;
2. A particulars matter in a judgment declared by the Rules to be appealable.

Non-Appealable Cases (PIDSES-D)

1. An order denying a petition for relief or any similar motion seeking relief judgment;
2. An interlocutory orders;
3. An order disallowing or dismissing an appeal;
4. An order denying a motion to set aside a judgment by consent, confession or compromise on
the ground of fraud, mistake or duress, or any other ground vitiating consent;
5. An order of execution;
6. A judgment or final order for or against one or more of several parties or in separate claims,
counterclaims, cross-claims and third party complaints, while the main case is pending, unless
the allows an appeal therefrom; and
7. An order dismissing an action without prejudice.

Note: The order denying a motion for new trial or reconsideration has been deleted from the list.

Remedy in case where appeal is not allowed: Special civil action or certiorari or prohibition if there is
lack or excess of jurisdiction or grave abuse of discretion or mandamus if there is no performance of
duty.

Interlocutory Order refers to an order which does not dispose of the case but leave something else to
be done by the trial court on the means of the case.

TAKE NOTE:
The term ‘final’ has two (2) possible meanings in Civil Procedure:
1. Final in the sense that it is already executor and that happens if there is no appeal. And that is
for purposes of applying rule 39 on execution.
2. Final in the sense that it is not merely interlocutory because it completely disposes of the case
or a particular matter therein and there is nothing more for the court to do after its rendition
(Bailan vs. Tan Sui Lay, L-19460, December 28, 1966).

TEST for determining whether a judgment or order is final or interlocutory: Does it leave something to
be done in the trial court with respect to the merits of the case? If it does, it is interlocutory, hence, you
cannot appeal yet; if it does not, it is final and therefore you can appeal. (Reyes vs. De Leon, L-3720, June
24, 1952)
 A judgment based on compromise is not appealable and is immediately executor.
  This rule refers to appeal from RTC exercising ORIGINAL JURISDICTION. An appeal on pure
question of law CANNOT be taken in the CA and such improper appeal will be dismissed
pursuant to Sec. 2, Rule 50 (Regalado, F. Remedial Law Compendium Vol. 8 th ed. P. 526).
SECTION 2. MODES OF APPEAL

Ordinary Appeal (Appeal of Writ
of Error)
Case is decided by the RTC in its
original jurisdiction.
Appealed to the CA in cases
decided by the RTC in its original
jurisdiction.
File a notice of appeal or a record
on appeal with the court of origin
(RTC) and give a copy to the
adverse party.
Within 15 days from the notice of
the judgment for notice of the
appeal and within 30 days for
records on appeal.
Petition for review (Rule 12)
Case is decided by the RTC in
the exercise of its appellate
jurisdiction.
Petition for review with CA.
File a verified petition for
review with the CA, Pay the
docket and lawful fees and
P500 as deposit for cost with
the CA. Furnish RTC and
adverse party copy of such
(Rule 42).
Within 15 days from notice of
the decision to be reviewed or
from the denial of MR or new
trial.
Petition for Review on ceritiorari
(Rule 45)
Cases are decided by the RTC, CA,
CTA and Sandiganbayan.
Appealed to the SC.
Filed a verified petition for review
on certiorari with the SC (Rule
45). Pay docket and lawful fees
and P500 for costs.
Submit proof of service of a copy
to the lower court and adverse
party.
Within 15 days from notice of the
judgment or order or denial of
the MR or new trial.

SECTION 3. PERIOD OR ORDINARY APPEAL

The appeal shall be taken within:

1. Fifteen (15) days from notice of the judgment or final order appealed from;
2. Thirty (30) days from the notice of the judgment or final order where a record on appeal is
required;
3. Forty-eight (48) hours from the notice of the judgment or final order appealed from in habeas
corpus cases.

Period of appeal:
1. May be extended and discretionary
2. Filing of the motion for extension of time to perfect appeal does not suspend the running of
reglementary period.

SECTION 4. APPELATE COURT DOCKET AND OTHER LAWFUL FEES

SECTION 5. NOTICE OF APPEAL

Notice of appeal must specify the following matters:

1. The parties of the appeal;
2. Judgment or final order or part thereof appealed from;
 3. The court to which the appeal is being taken; and
4. The material dates showing the timeliness of the appeal.

Rules on Interlocutory Order:

1. When the order of interlocutory, the movant has to wait for the judgment and appeal from
judgment in the courts of which appeal as he can assign as an error the said interlocutory
2. Certiorari – if with grave abuse of discretion
3. When the order appealed from is interlocutory, the appellate court can dismiss the appeal even
if no objection thereto was filed by the appellee in either the trial or appellate court.

General Rule: Perfection of appeal within reglematory period is jurisdiction.

Except: when there has been extrinsic fraud, accident mistake or excusable negligence (FAME)

SECTION 6. RECORD ON APPEAL; FORM AND CONTENTS THEREOF

1. Full names of all the parties to the proceedings stated in the caption of the record;
2. Include the judgment or final order from which the appeal is taken;
3. In chronological order, copies of only such pleadings, petitions, motions, and all interlocutory
orders as are related to the appealed judgment for the proper understanding of the issue
involved;
4. Together with such data as will show that the appeal was perfected on time(Material Data
Rule);
5. Every record on appeal exceeding 20 pages must contain a subject index.

SECTION 7. APPROVAL OF RECORD ON APPEAL

Procedure if the appeal is through a record on appeal:

1. File record on appeal;
2. Appellee may file an objection within five (5) days from his receipt thereof;
3. If there is no objection the court may:
a. Approved it as presented; OR
b. Direct its amendment on its own or upon the motion of the adverse party.
4. If an amendment is ordered the appellant must redraft the record within the time ordered or if
there is no time, within ten (10) days from receipt;
5. Submit the record for approval within notice on the adverse party.

SECTION 8. JOINT RECORD ON APPEAL

When both parties are appellants, they may file a joint record on appeal within the time provided.

SECTION 9. PERFECTION OF APPEAL; EFFECT THEREOF

Appeal is Deemed Perfected

1. BY NOTICE OF APPEAL: As to him, upon the filing of the notice of the appeal in due time; and
2. BY RECORD ON APPEAL: As to him, with respect to the subject matter thereof, upon the
approval of the record on appeal filed in due time.
Effects of a Perfected Appeal
In APPEALS BY NOTICE OF APPEAL, the court loses jurisdiction over the case upon the perfection of the
appeal filed in due time and the expiration of the time appeal of the other parties.

In APPEALS BY RECORD ON APPEAL, the court loses jurisdiction only over the subject matter thereof
upon approval of the records on appeal filed in due time and the expiration of the time appeal of the
other parties.

Residual power of the court after losing jurisdiction but prior to the transmittal of the original record or
record on appeal: [O PAPA]
1. Order execution pending appeal under Rule 39, Sec. 2 (motion for execution was frilled before
the expiration of the period to appeal);
2. To issue orders for the preservation of the rights of the parties which do not involve matters
litigated by appeal;
3. To approve compromise prior to the transmittal of the record;
4. Permit appeal by the indigent;
5. Allow withdrawal of the appeal;
6. The court can order dismissal of an appeal under Sec. 13, Rule 41.

Duration of Residual Powers

Ordinary Appeal Petition for Review

Until the records are transmitted to the appellate Until the Court of Appeals give due course to the
court. petition.

SECTION 10. DUTY OF THE CLERK OF COURT OF THE LOWER COURT

Within 30 days after perfection of the appeal, it shall be the duty of the clerk of court:
1. To verify the correctness of the original record or record on appeal, as the case may be, and to
make certification of its correctness;
2. To verify the completeness of the records that will be transmitted;
3. If found incomplete, to take such measures as may be required to complete the records;
4. To transmit the records t the appellate court;
5. If the errors to complete the records fail, he shall indicate in his letter of transmittal:
a. Those that were not included;
b. Reasons for their non-transmittal; and
c. The steps taken or could be taken;
d. He shall furnish the parties with copies of his letter.

SECTION 11. TRANSCRIPT

Upon perfection of the appeal, the clerk shall direct the stenographer concerned:
1. To attach to the record of the case 5 copies of the transcript of testimonial evidence;
2. Transcribe such testimonial evidence;
3. Shall affix an index containing the names of the witnesses and pages where their testimonial are
found; and
4. List of the exhibits and pages wherein each appears.
SECTION 12. TRANSMITTAL

The clerk of the trial court shall transmit to the appellate court the original record or approved record on
appeal:
1. Within 30 days from perfection of appeal;
2. Proof of payment of the appellate court docket and other lawful fees;
3. Certified copy of the minutes f the proceedings;
4. Order of approval;
5. Certificate of correctness;
6. Original documentary evidence;
7. Original and three (3) copies of the transcript.

SECTION 13. DISMISSAL OF APPEAL

Prior t the transmittal of the original record or the record on appeal, the trial court may, motu propio or
on motion dismiss of the appeal for:

1. Having been taken out of time; or

2. Non-payment of the docket and other lawful fees within the reglementary period.

The requirement regarding the perfection of the appeal within the reglementary period is not only
mandatory but jurisdictional.

RULE 42. PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS

Nature: This mode of appeal is not a matter of right. It is a matter of discretion on the part of CA on
whether or not to entertain the appeal.

SECTION 1. HOW APPEAL TAKEN; TIME FOR FILING

The party desiring to appeal from a decision of the RTC rendered in the exercise of its APPELATE
JURISDICTION may:
1. File a verified petition for review with the CA:
a. Within 15 days from notice of decision; or
b. Within 15 days denial of petitioner’s Motion for New Trial or MR.
2. Pay the corresponding docket and other lawful fees, depositing P500;
3. Furnish the RTC and the adverse party with a copy of the petition.

The CA may grant an additional period of 15 days within which to file the petition for review. No further
extension shall be granted except for the most compelling reason and in no case to exceed 15 days.

SECTION 2. FORM AND CONTENTS

The petition shall be filed in seven (7) legible copies, with the original copy intended for the court being
indicated and shall:
1. State the full names of the parties to the case;
2. Indicate the specific material dates showing that it was filed in time;
3. Set forth concisely a statement of the :
a. Matters involved;
b. Issues raised;
c. Specification of errors of fact of law, or both, allegedly committed by the RTC; and
d. Reasons or arguments relied upon for the allowance of the appeal;
4. Accompanied by clearly legible duplicate originals or true copies of the judgment or final orders
of both lower courts; and
5. Certificate of non-forum shopping.

Note: A certificate of non-forum shopping is required even if a petition for review is not an initiatory
pleading.

SECTION 3. EFFECT OF FAILURE TO COMPLY WITH REQUIREMENTS

Failure to comply the following requirements shall be sufficient ground for DISMISSAL:
1. Payment of docket and other lawful fees;
2. Deposit for costs, proof of service of the petition; and
3. Contents of the documents which should accompany the period.

SECTION 4. ACTION OF THE PETITION

The CA may:
1. Require the correspondent to file a comment on the petition, NOT a motion to dismiss, within
10 days from notice; OR
2. Dismiss the petition if it finds the same to be:
a. Patently without merit;
b. Prosecuted manifestly for delay; or
c. The questions raised therein are too unsubstantial to require consideration.

SECTION 5. CONTENTS OF COMMENT

Comments of the respondent shall be filed in seven (7) legible copies, accompanied by certified true
copies of such material portions of the record referred therein together with other supporting papers
and shall: (AIR)
1. State whether or not he accepts the statement of matters involved in the petition;
2. Point out such insufficiencies or inaccuracies as he believes exist in petitioner’s statement of
matters but without repetition; and
3. Reasons why the petition should not be given due course.

SECTION 6. DUE COURSE

Petition for review is not a matter of right but discretionary on the CA. It may only give due course to the
petition if it shows on its face (CA finds prima facie) that the lower court has committed an error of fact
and\or law that will warrant a reversal or modification of the decision or judgment sought to be
reviewed.

Effect if given due course-parties will be required to submit their respective memorandum.

SECTION 7. ELEVATION OF RECORD

It is merely discretionary on the CA to order the elevation of the records. This is because until the
petition is given due course, the trial court may still issue a warrant of execution pending appeal and in
same cases such as ejectment and those of Summary Procedure, the judgments are immediately
executory.

It is only when the CA deems it necessary that the Clerk of the RTC will be ordered to elevate the records
of the case.

SECTION 8. PERFECTION OF APPEAL; EFFECT

1. Deemed perfected as to the petitioner upon the timely filing of the petition for review and
payment of the corresponding fees; as
2. Court loses jurisdiction over the case upon perfection of appeal on time and expiration of the
period to appeal.

Residual Power of the court before the CA gives due course to the petition (Same as in Sec. 9, Rule 41).

Except in civil cases decided under the Rule on Summary Procedure, the appeal shall stay the judgment
or final order unless the CA, the law, or these Rules provide otherwise (Sec. 8(b) ).

SECTION 9. SUBMISSION FOR DECISION

If the petition is given due course:

1. Case may be set for oral argument; or
2. The parties may be required to submit memoranda within 15 days from notice;
3. Case shall be deemed submitted for decision upon filing of the last pleading or memorandum.

RULE 43. APPEALS FROM THE COURT OF TAX APPEALS AND THE QUASI-JUDICIAL AGENCIES TO THE
C.A.

SECTION 1. SCOPE
Appeals from awards, judgments, final orders or resolution of or authorized by any quasi-judicial agency
in the exercise of its quasi-judicial functions.

These Agencies Include

1. The Civil Service Commission;
2. Central Board of Assessment Appeals;
3. Securities and Exchange Commission;
4. Office of the President;
5. Land Registration Authority;
6. Social Security Commission;
 7. Civil Aeronautics Board;
8. Bureau of Patents Trademarks and Technology Transfer;
9. National Electrification Administration;
10. Energy Regulatory Board;
11. National Telecommunication Commission;
12. Department of Agencies Reform under RA 6657;
13. GSIS
14. EMPLOYEES Compensation Commission;
15. Agricultural Inventions Board;
16. Insurance Commission;
17. Philippine Atomic Energy Commission;
18. Board of Investments;
19. Construction Industry Arbitration Commission; and
20. Voluntary Arbitrators authorized by law.

A party adversely affected by a decision or ruling of the CTA may file with the Supreme
Court a verified petition to review on certiorari pursuant to Rule 45 (Sec. 12, RA 9282 and
A.M. 07-7-12-SC).

Note: The Court of Appeals has jurisdiction over orders, directives and decisions of the Office of the
Ombudsman in administrative disciplinary cases only. It cannot, therefore, review the orders, directives
or decision of the Office of the Ombudsman in criminal and non-administrative cases (Golangco vs.
Fung, Office of the Ombudsman, G.R. No. 147640-147762, October 12, 2006).

Finding of fact of the agency concerned, when supported by substantial evidence, shall be
binding on the CA.

SECTION 2. CASES NOT COVERED

Judgments and final orders or resolutions of the NLRC are reviewable by the COURT OF
APPEALS in an original action for certiorari under Rule 65 (St. Martin Funeral Homes vs.
NLRC, GR. No. 130866, Sept. 16, 1998).

SECTION 3. WHERE TO APPEAL

Appeal under this Rule may be taken to the CA within the period and in the manner herein
provided, whether the appeal involves questions of fact, of law, or mixed question of law
and fact.

SECTION 4. PERIOD OF APPEAL

Fifteen (15) days from:

1. Notice of the award, judgment, final order or resolution; or
2. Date of publication, if publication is required by law for its effectivity; or
3. Denial of petitioner’s MNT or MR (Only 1 MR shall be allowed).

 The CA may grant additional 15 days only within which to file the petition for review, upon
proper motion and payment in full of docket fees.
  No further extension shall be granted except for the most compelling reason and in no case shall
exceed 15 days.

SECTION 5. HOW APPEAL TAKEN

1. By filing a verified petition for review in seven (7) legible copies;

2. With proof of service of a copy thereof on the adverse and on the court or agency a quo;
3. Pay to the clerk of court of CA docket and other lawful fees; and
4. Deposit the sum of P500 for costs.

RTC as Appellate Court (Rule 42) Quasi-Judicial Agencies (Rule 43)

Decision is stayed by an appeal Decision is immediately executor; not stayed
by an appeal.
Factual findings not conclusive to CA. Factual findings are conclusive upon CA if
supported by substantial evidence.

SECTION 6. CONTENTS OF THE PETITION

1. State the full names of the parties to the case;

2. Set forth concisely a statement of the facts and issues involved and the grounds relied
upon for review;
3. Accompanied by clearly legible duplicate originals or certified true copy of the award,
judgment, final order or resolution appealed from;
4. Certificate of non-forum shopping;
5. State the specific material dates showing that it was filed on time.

SECTION 7. EFFECT OF FAILUR TO COMPLYT WITH REQUIREMENTS

Sufficient ground for dismissal.

SECTION 8. ACTION ON THE PETITION

SECTION 9. CONTENTS OF THE COMMENT

SECTION 10. DUE COURSE

The foregoing sections are similar to Sections 4, 5, and 6 of Rule 42.

SECTION 11. TRANSMMITAL OF RECORD

Within 15 days from notice that the petition has been given due course, the CA may require the agency
concerned to transmit the original or a legible certified record of the proceeding under review.

SECTION 12. EFFECT OF APPEAL

General Rule: Appeal shall NOT stay the award, judgment, final order or resolution sought to be
reviewed.
Exception: When the CA shall direct otherwise upon such terms as it may deem just.

SECTION 13. SUBMISSION FOR DECISION

Similar to Section 9 of Rule 42.

RULE 44. ORDINARY APPEALED CASES

SECTION 1. TITLE OF CASES

In all cases appealed to the CA under Rule 41, the title of the case shall remain the same but party
appealing the case shall be referred to as appellant and the adverse party as the appellee.

SECTION 2. COUNCEL AND GUARDIAN

Counsel and guardians ad item in the court of origin, shall be considered as such in the CA.

When others appear or are appointed, notice shall be served on the adverse party and filed with the
court.

SECTION 3. ORDER OF TRANSMITTAL OF RECORD

If not transmitted within 30 days after perfection of the appeal, either party may file a motion with trial
court, with notice to the other, for the transmittal.

SECTION 4. DOCKETING OF THE CASE

SECTION 5. COMPLETION OF RECORD

SECTION 6. DISPENSING WITH COMPLETE RECORD

If completion of the record cannot be accomplished within sufficient period due to insuperable or
extremely difficult cause:
1. The court on its own motion; or
2. On motion of any of the parties.
 May declare that the record and its accompanying transcripts and exhibits are already sufficient
to decide the issues.

SECTION 7. APPELANT’S BRIEF

It shall be filed, within FORTY-FIVE (45) DAYS from receipt of the notice of the clerk of court that all the
evidence is attached to the record:
1. SEVEN (7) COPIES of his legibly typewritten, mimeographed or printed brief; and
2. With proof of service of two (2) copies thereof upon the appellee.

 Failure to file appellant’s brief on time is ground for dismissal of the appeal.
 If a motion to dismiss an appeal has been filed, it suspends the running of the period for filling
the appellant’s brief, as the same would be unnecessary should the motion be granted.
  The failure of the appellant to make specific assignment of errors in his brief or page references
t the record as required in this section is a ground for dismissal of his appeal.

SECTION 8. APPELLEE’S BRIEF

It shall be filed similar to appellant’s brief upon receipt thereof.

SECTION 9. APPELANT’S REPLY BRIEF

Within 20 days from receipt of the appellee’s brief, appellant may file a reply brief answering points not
covered in his main brief.

SECTION 10. TIME FOR FILING MEMORANDA IN SPECIAL

In certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, parties shall file in lieu of
brief, their respective memoranda within a non-extendible period of 30 days from receipt of the notice.

The failure of the appellant to file his memorandum within the period therefore may be a ground for
dismissal of the appeal.

Brief Memorandum
Ordinary appeals. Gertiorari, Prohibition, Mandamus, Quo Warranto
and Habeas Corpus cases.
Filed within forty-five (45) days. Within thirty (30) days.
Contents specified by Rules Shorter, briefer, only one issue involved – No
subject index or assignment of errors just facts and
law applicable.

SECTION 11. SEVERAL APPELANTS OR APPELLANTS OR APPELEES OR SEVERAL COUNSEL FOR EACH
PARTY

Several appellants or appellees each counsel representing one or more but not all of them – shall be
served with only ONE (1) copy of the briefs.

Several counsels represent one appellant or appellee, copies of the brief may be served upon any of
them.

SECTION 12. EXTENSION OF TIME FOR FILING BRIEFS

General Rule: NOT allowed.

Exception: For good and sufficient cause.

SECTION 13. CONTENTS OF APPELANT’S BRIEF (SAC FIARC)

1. Subject index of the matter in the brief with a digest of the arguments and page references, and
a table of cases alphabetically arranged in textbooks and statutes cited with references to the
pages where they are cited;
2. Assignment of errors;
 3. Under heading of “Statement of the case”, clear and concise statement of nature of the action,
summary of the proceedings, appealed rulings and orders of the court, nature of the judgment
and any matters necessary to an understanding of the nature of the controversy;
4. Under the heading “Statement of facts”, clear and concise statement in a narrative form of the
facts admitted by both parties and of those in controversy;
5. Clear and concise statement of the issues of fact or law;
6. Under the heading “Argument”, appellant’s argument on each assignments of error. Authorities
relied upon shall be cited;
7. Under the heading “Relief”, specification of the order or judgment which the appellant seek;
and
8. In cases not brought up by record on appeal, appellant’s brief shall contain, as an appendix, a
copy of the judgment or final order appealed from.

SECTION 14. CONTENTS OF APPELLEE’S BRIEF

1. Subject index of the matter in the brief with a digest of the arguments and page references,
and a table of cases alphabetically arranged, textbooks and statutes cited with references to
the pages where they are cited;
2. Under the heading “Statement of Facts, appellee shall state that he accepts the statements
of facts in the appelant’s brief, or under the heading “Counter-Statement of Facts”, pint out
such insufficiencies or inaccuracies as he believes exist in the appelant’s statement of facts;
and
3. Upon the heading “Argument,” appelle shall set forth his arguments in the case on each
assignment of error with page references to the record. Authorities relied upon shall be
cited.

SECTION 15. QUESTIONS THAT MAY BE RAISED ON APPEAL

He appeal can raise only questions of law or fact that:

1. Has been raised in the court below; and
2. Which is within the issues framed by the parties.

 He cannot, for the first time on appeal, say something which was not raised in the trial.
 He cannot change his theory on the cause of action or defense.

Rule: The reversal of a judgment on appeal is generally binding only on the parties in the appealed case
and does not affect or inure to the benefit of those who did not join or were not made parties to the
appeal.
Exception: Where the rights of such parties are so interwoven and dependent on each other as to be
inseparable due to community of interests.

General Rule: The appellee is not required to make assignment of errors.

Except: When his purpose is to seek affirmation of the judgment on other grounds or reasons not stated
in the decision.

General Rule: If you are the winning party, you may appeal the decision if you think you are entitled for
more, you cannot state of errors in the appelle’s brief.
Exception: Assignment of errors to support, not to change, the decision change in decision-you must
appeal.

RULE 45: APPEAL BY CERTIORARI TO THE SUPREME COURT

RTC, Sandiganbayan, CTA or CA

renders decision

Any party files a petition for review

on certiorari within 15 days from
notice of final judgment or order of
lower court or notice of denial of
motion for reconsideration or new
trial.

Appellant serves copies of petition on

adverse parties and to the lower court
and pay the corresponding docket
fees.

SC may dismiss the petition or require

the appellee to comment.

If given due course, parties may submit

memoranda.

SC may affirm, reverse, or modify

judgment of the lower court.
SECTION 1. FILING OF PETITION WITH SUPREME COURT

Appeals to the SC can be taken from a judgment or final order or resolution of the CA, the
Sandiganbayan, the Court of Tax Appeals, the RTC or such other courts as maybe authorized by law and
only by verified petition for review on certiorari.

The petition may include an application for a writ of preliminary injunction or other provisional
remedies. The petitioner may seek the same provisional remedies by VERIFIED MOTION file in the same
action or proceeding at any time during its pendency (as amended by A.M. 07-7-12-SC).

EXCEPT as provided in criminal cases in Sec 13(c) Rule 124 in relation to Sec 3(e) Rule 122, whenever the
CA imposes reclusion perpetua, life imprisonment or a lesser penalty, judgment may be appealed to the
SC by NOTICE OF APPEAL filed with the CA.

Note: The petition shall raise ONLY QUESTIONS OF LAW which must be distinctly set forth.

Questions of Law Questions of Fact

Doubt or controversy as to what the law is in
certain facts.
If the appellate court can determine the issue
raised without reviewing or evaluating the
evidence.
Can evolve questions of interpretation of the law
with respect to certain set of facts.
Doubt or difference as to the truth or falsehood of
facts, or as to probative value of the evidence
presented.
The determination involves evaluating or review of
evidence.
Query invites the calibration of the whole evidence
considering mainly the credibility of witnesses,
existence and relevancy of specific surrounding
circumstances and relation to each other and the
whole probabilities of the situation.

General Rule: The findings of fact of the CA are final and conclusive and cannot be reviewed on appeal
to the SC.

Exceptions to Conclusiveness of Facts

1. When the finding is grounded entirely on speculations surmise or conjecture;
2. When inference made is manifestly absurd, mistaken or impossible;
3. When the judgment is premised on a misrepresentation of facts;
4. When there is grave abuse of discretion in the appreciation of facts;
5. When the findings of fact are conflicting;
6. When the CA in making its findings went beyond the issues of the case and the same is contrary
to both the admissions of appellants and appellees;
7. When the findings of fact of the CA are at variance with those at the trial court, the SC has to
review the evidence in order to arrive at the correct findings based on the record;
8. When the findings of fact are conclusions without citation of specific evidence on which they are
based;
9. When the facts set forth in the petition as well in the petitioner’s main and reply briefs are not
disputed by the respondents;
 10. The findings of fact of the CA is premised in the supposed evidence and is contradicted by the
evidence on record; and
11. When certain material facts and circumstances have been overlooked by the trial court which, if
taken into account, would alter the result of the case in that they would entitle the accused to
acquittal.

SECTION 2. TIME FOR FILING; EXTENSION

Within 15 days from notice of the judgment of final order or resolution appealed from or denial of the
petitioner’s motion for new trial or MR filed in due time.

The SC may for justifiable reasons grant an extension for 30 days only within which t file the petition.

SECTION 3. DOCKET AND OTHER LAWFUL FEES; PROOF OF SERVICE

Unless he has therefore done so, petitioner shall pay the corresponding docket and other lawful fees to
the clerk of court of SC and deposit P500 for costs.

Proof of service of a copy thereof on the lower court concerned and on he adverse party shall be
submitted together with the petition.

SECTION 4. CONTENTS OF THE PETITION

1. State the full names of the appealing party as the petitioner and the adverse party as
respondent;
2. Indicate the specific material dates showing that it was filed on time;
3. Set forth concisely a statement of the :
a. Matters involved;
b. Reasons or arguments relied upon for the allowance of the appeal.
4. Accompanied by clearly legible duplicate original or certified true copy of the judgment or final
order or resolution; and
5. Certificate of non-forum shopping.

SECTION 5. DISMISSAL OR DENIAL OF PETITION

1. Failure of the petitioner to comply with any of the foregoing requirements;

2. Appeal is without merit;
3. Is prosecuted manifestly for delay; or
4. That the questions raised therein are too unsubstantial to require consideration.
5. When the appeal is filed out of time.

Questions of Law Questions of Fact

If the issue is as to what the law is on a certain set If the issue is as to the truth or falsehood of
of fact alleged fats
Where the case has been decided without Can be resolved by going into evidence
evidence

Samples:
 1. Where the issue is the construction or interpretation of documentary evidence.
2. Where the case submitted upon agreed statement of facts.
3. Where all facts are stated in the judgment and the issues of correctness of the conclusion.

Note: SC may dismiss the petition motu proprio.

SECTION 6. REVIEW DISCRETIONARY

Review with be granted only when there are special and important reasons therefore.

The following, while neither controlling nor fully measuring the court’s discretion, indicate the character
of the reasons which will be considered:
a. Court a quo has decided a question of substance, not theretofore determined by the SC, or has
decided it in a way probably in accord with law or with the applicable decisions of the SC; or
b. Court a quo has so far departed from the accepted and usual course of judicial proceedings, or
so far sanctioned such departure by a lower court, as to call for an exercise of the power of
supervision.

SECTION 7. PLEADING AND DOCUMENTS THAT MAY BE REQUIRED; SANCTIONS

For documents of determining SE. 5 or Sec. 8, SC may require of allow the filing of such pleadings, brief,
memoranda or documents within such periods and under such conditions as it may consider
appropriate.

SC may impose the corresponding sanctions in case of non-filing or unauthorized filing or non-
compliance with the conditions.

SECTION 8. DUE COURSE; ELEVATION OF RECORDS

SECTION 9. RULE APPLICABLE TO BOTH CIVIL AND CRIMINAL CASES

Appeal by Certiorari (Rule 45)
Petition is based on questions of
law.
It is a mode of appeal.
Involve the review of the
judgment award or final order
on the merits.
Fled within 15 days from notice
of judgment, final order or
resolution appealed from.
Review of Judgments, Final
Orders or Resolutions (Rule 64)
Petition is based on questions of
law.
It is a mode of appeal but the
petition used is Rule 65.
Involves the review of the
judgment, final orders or
resolutions of COMELEC and
COA.
Fled within 15 days from notice
of judgment, final order or
resolution sought to be
Petition by Certiorari (Rule 65)
Petition is based on questions of
jurisdiction.
It is a mode of review.
Directed against an interlocutory
order of the court or where is no
appeal or any other plain, speedy
or adequate remedy.
Fled within 60 days from notice
of judgment, final order or
resolution sought to be

Stays the judgment or order
appealed from.
The appellant and the appellee
are the original parties to the
action, and the lower court or
quasi judicial agency is not
impleaded.
Motion for reconsideration is not
required.
The court is the exercise of its
appellate jurisdiction and power
of review.
The petition shall be filed with
the Supreme Court.
reviewed.
Shall not stay the execution
unless SC shall direct otherwise
upon such terms as it may deem
just.
The COMELEC and COA shall be
public respondents who are
impleaded in the action.
The filing of a motion for
reconsideration or new trial, if
allowed under the procedural
rules of the Commission, shall
interrupt period fixed.
The court is the exercise of its
appellate jurisdiction and power
of review.
The petition shall be filed with
the Supreme Court.
reviewed.
Unless a writ of preliminary
injunction or temporary
restraining order is issued does
not stay the challenged
proceeding.
The judge, court, quasi-judicial
agency, tribunal, corporation,
board, officer or person shall be
public respondents who are
impleaded in the action.
Motion for reconsideration or for
new trial is required, If a motion
for reconsideration or new trial is
filed, the period shall not only be
interrupted but another 60 days
shall be given to the petitioner.
(SC Admin. Matter 02-03)
Court exercises original
jurisdiction.
The petition shall be filed with
the RTC, CA, Sandiganbayan and
COMELEC.

Note: Rule on Writ of Amparo and Habeas Data

Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal
may raise questions of fact or law or both. The appeal may be raise questions of fact or law or both. The
period of appeal shall be five (5) working days from the date of notice of the judgment or order.

RULE 46. ORIGINAL CASES

SECTION 1. TITLE OF CASES

In all cases originally filed in CA, the party instituting the action shall be called petitioner and the
opposing party the respondent.

SECTION 2. TO WHAT ACTIONS APPLICABLE.

Original actions for certiorari, prohibition, mandamus, and quo warranto. Petition for habeas corpus are
excluded being governed by the rules on special proceedings and Sec. 3, Rule 41.

SECTION 3. CONTENTS AND FILING OF PETITION; EFFECT OF NON-COMPLIANCE WITH REQUIREMENTS

The petition may contain:

 1. Full names and actual addresses of all petitioners and respondents;
2. Concise statement of the matters involved
3. Factual background of the case;
4. Grounds relied upon for the relief prayed for;
5. In actions filed under Rule 65, indicate the material dates showing when notice of the judgment
or final order or resolution was received;
6. Filed in seven (7) legible copies, with proof of service on the respondent;
7. Accompanied by clearly legible duplicate original or certified true copy of the judgment or final
order or resolution;
8. Certificate of non-forum shopping;
9. Payment of docket and other lawful fees; and
10. Deposit the amount of P500.

 Failure to comply with the foregoing requirements shall be sufficient ground for the dismissal of
the petition.

Substantial Compliance Rule

Rule 46 applies to actions for certiorari filed in the Court of Appeals but Rule 65 generally supplements
the same. Mere duplicate originals are sufficient under Rule 46 even if Rule 65 requires only certified
true copies (Republic vs. Carmel Development, Inc., G.R.No. 142572, Feb. 20, 2002).

SECTION 4. JURISDICTION OVER PERSON, HOW ACQUIRED

Jurisdiction is Acquired
1. Over the PETITIONER – by filing of the petition.
2. Over the RESPONDENT – by the service on the latter of the order or resolution indicating the
courts initial action on the petition or by his voluntary submission.

SECTION 5. ACTION BY THE COURT

The court may:

1. Dismiss the petition outright with specific reasons for such dismissal; or
2. Require the respondent to file a comment on the same.

SECTION 6. DETERMINATION OF THE FACTUAL ISSUES

Procedural outline (original cases in the court of appeals)

1. Filing of the petition;
2. Order to acquire jurisdiction over respondents OR outright dismissal for failure to comply with
the requirement as to form and payment of docket and other legal fees;
3. Require respondents to file COMMENT within ten (10) days from NOTICE;
4. Court may require the filing o a REPLY or such other pleadings as it may deem necessary;
5. Determination of FACTUAL ISSUES, the court itself may conduct hearing or delegate the
reception of evidence on such issues to any of its members or to ay appropriate court, agency or
office (Sec. 6); and
6. Submission of Memoranda.
Note: The reception of evidence may be delegated to a member of the Court of Appeals or a judge of a
lower court who is not a public respondent.

SECTION 7. EFFECT OF FAILURE TO FILE COMMENT

The case may be decided on the basis of the record, without prejudice to any disciplinary action which
the court may take against the disobedient party.
RULE 47. ANNULMENT OF JUDGMENT OR FINAL ORDERS AND RESOLUTION
SECTION 1. COVERAGE

Annulment of judgment is a remedy in law independent of the case where the judgment sought to be
annulled was rendered and may be availed of through the judgment has been executed.

Nature: It is not a mode of appeal but an independent civil action.

Where Filed:
Judgments, Final Orders, or Resolutions of RTC
Filed with the Court of Appeals
BASIS: It has exclusive original jurisdiction over
said action under Sec. 9 (2) of BP 129
The CA may Dismiss the case outright; it has the
discretion on whether or not to entertain the
petition.
Judgments, Final Orders, or Resolutions of MTC
Filed with the RTC
BASIS: RTC as a court of general jurisdiction under
Sec. 9 (6) of BP 129
The RTC has no such discretion. It is required to
considered it as an ordinary civil action.

Important condition of the availment of this remedy

The petitioner failed to move for new trial in, or appeal from, or file a petition for relief against, or take
other appropriate remedies assailing the questioned judgment or final order or resolution through no
fault attributable to him.

If he failed to avail of those other remedies without sufficient jurisdiction, he cannot resort to
annulment provided in this Rule, otherwise he would benefit from his own inaction or negligence.

Note: Annulment of Judgment does not apply to judgments rendered by quasi-judicial bodies. It does
not apply also to decisions or orders of the Ombudsman in administrative case whose decisions or
orders may be appealed to the Court of Appeals under Rule 43 (MAcalalag vs. Ombudsman, G.R. No.
147995, Mar. 5, 2004).

SECTION 2. GROUNDS FOR ANNULMENT

1. Extrinsic fraud or Collateral fraud;

Extrinsic or Collateral fraud refers to any fraudulent act of the prevailing party in the litigation
which is committed outside of the trial of the case, whereby the defeated party has been
prevented by exhibiting fully and fairly presenting his side of the case.

Note: extrinsic fraud shall not be a valid ground if it was availed or, or could have been availed
of, in ambition for new trial or petition for relief.
 2. Lack of jurisdiction over the subject matter and over the person.

Lack of Jurisdiction
The defense of lack of jurisdiction may be barred by estoppel by laches, which is that failure to
do something which should be done or to claim or enforce a right at a proper time or a neglect
to do something which one should do or to seek or enforce a right at a proper time.

Note: The rule is that jurisdiction over the subject matte is conferred upon the court exclusively by law,
and as lack of its affects the very authority of the court to take cognizance of the case, the objection may
be raised at any stage of the proceedings.

However, considering the facts and circumstances of the present case, a party may be barred by laches
from invoking this plea for the first time on appeal for the purpose of annulling everything done in the
case with the active participation of said party invoking the plea (Tijam vs. Sibonghanoy, G.R. No. L-
21450, April 15, 1968).

Attack of Void Judgment

When the judgment is null and void on its very face, the judgment may be attacked:
1. DIRECTLY; or
2. COLLATERALLY;

When the nullity is not apparent on the face of the judgment, the judgment can only be DIRECTLY
attacked.

DIRECT ATTACK
An independent action must be filed to challenge the validity for the judgment whose nullity is not
patent on its face.

COLLATERALLY ATTACK
A collateral attack is made when, in another action to obtain a different relief, an attack on the judgment
is made as an incident in said action. This is proper only when the judgment is on its face null and voice
such as in cases of lack or jurisdiction to render the judgment.

SECTION 3. PERIOD FOR FILING ACTION

Extrinsic Fraud Lack of Jurisdiction

Period of Filing action
Effect of judgment
Four (4) years from discovery.
Court may on motion order the
trial court to try the case as if a
timely MNT had been granted.
Before it is barred by laches or
estoppels.
Set aside the questioned
judgment and render the same
null and void, without prejudice
to the original question being
refilled in the proper court.

Remedies when decision is already filed and executor

1. Petition for relief from judgment;
2. When judgment is void for want of jurisdiction:
 a. Direct attack ;
b. Certiorari;
c. Annulment of judgment;
d. Collateral attack;
3. When the judgment obtained by fraud and Rule 38 cannot be applied anymore.

SECTION 4. FILING AND CONTENTS

The action shall be commenced by filing:
1. Verified petition alleging therein:
a. With particularly the facts and the la relied upon;
b. Petitioner’s good and substantial cause of action or defense;
2. Filed in seven (7) legible copies;
3. Certified true copy o the judgment or final order or resolution;
4. Affidavits of witnesses or documents supporting the cause of action or defense; and
5. Certificate of non-forum shopping.

SECTION 5. ACTION BY THE COURT

Two stages:
1. A preliminary evaluation of the petition for prima facie merit therein; and
2. The issuance of summons as in ordinary civil cases and such appropriate proceedings thereafter
as contemplated in Sec. 6 (Reagalado, p.572).

The rule allows the CA to dismiss the petition outright as in special civil actions.
For the court to acquire jurisdiction over the respondent, the rue requires the issuance of summons
should prima facie merit be found in the petition and the same is given due course.

Note: Res judicata is not a bar to the action for the annulment of the judgment sought to be annulled
(Orbeta vs. Sendiong, G.R. No. 155236, July 8, 2005).

SECTION 6. PROCEDURE
Procedure in any cases shall be observed.
The reception of evidence may be referred to a member of the court or a judge of RTC.

SECTION 7. EFFECT OF JUDGMENT

SECTION 8. SUSPENSION OF PRESCRIPTIVE PERIOD

Prescriptive period for the re-filing of the aforesaid original action shall be deemed suspension from the
filing of such original action until the finality of the judgment of the annulment.

HOWEVER, the prescriptive period shall not be suspended where the extrinsic fraud is attributable to
the plaintiff in the original action.

SECTION 9. RELIEF AVAILABLE

Judgment may include award of damages, attorney’s fees and other relief.
If already executed, the court may issue ORDERS OF RESTITUTION or other relief as justice and equity
may warrant.

SECTION 10. ANNULMENT OF JUDGMENTS OR FINAL ORDERS OF MUNICIPAL TRIAL COURTS

 Filed with the RTC having jurisdiction over the MTC.
 RTC is a court or general jurisdiction. All cases, the jurisdiction over which is not specifically
provide for the law to be within the jurisdiction of any other court fall under its jurisdiction
(Durisol Philippines, Inc. vs. CA G.R. No. 121106, Feb. 20, 2002).
General Rule: Annulment of judgment I available only to a litigant.

Exception: A person need not be a party to the judgment sought to be annulled. What is essential is that
he can prove his allegation that the judgment was obtained by the use of fraud and collusion and he
would be adversely affected thereby (Islamic Da’wah Council vs. Court of Appeals, G.R. No. 80892
September 29, 1989)

Note: Where a petition for annulment of judgment was dismissed by the Court of Appeals, the Supreme
Court is without jurisdiction to entertain another petition for annulment in the guise of a special civil
action for certiorari under Rule 65. The remedy of the petitioner is to file a petition for review on
certiorari under Rule 45 (Lapu-Lapu Development v. Risos, G.R. 118633, Sept. 6, 196).

RULE 48. PRELIMINARY CONFERENCE

Nature: Preliminary conference before the appellate court is not mandatory. Its calling is within the
discretion of said court.
-same as pre-trial

SECTION 1. PRELIMINARY CONFERENCE

At any time during the pendency of a case, court may call the parties and their counsel: (DAFT)
1. To define, simplify and clarify the issues for determination;
2. To consider the possibility of an amicable settlement except when the case is not allowed by
law to be compromised;
3. To formulate stipulations of facts and admissions of documentary exhibits, limit the number
of witnesses to be presented; and
4. To take up such other matters which may aid the court in the prompt disposition of the
case.

Failure to appear at the preliminary conference is a ground for dismissal of the petition (Sec.
1[h], Rule 50; Sec 5[e], Rule 56).

SECTION 2. RECORD OF THE CONFERENCE

SECTION 3. BINDING EFFECT OF THE RESULTS OF THE CONFERENCE

In the CA, this procedural device may be availed of not only in original actions but only in
cases on appeal wherein a new trial was granted on the ground of newly discovered
evidence.
 The CA can act as a trier of facts. HENCE, the preliminary conference authorized is a
convenient adjunct to such power and function.

RULE 49. ORAL ARGUMENT

SECTION 1. WHEN ALLOWED

At its own instance or upon motion of a party, the court may hear the parties in oral
argument on the merits of a case or any material incident in connection therewith.

SECTION 2. CONDUCT OF ORAL ARGUMENT

SECTION 3. NO HEARING OR ORAL ARGUMENT FOR MOTIONS

Motion in the SC and the CA do not contain notices of hearing as no oral argument will be
heard in support thereof; and if the appellate court desires to hold a hearing thereon, it will
itself set the date with notice to the parties.

Motion in RTC
 With notice of hearing a hached to the motion. Otherwise denied.
Motion in CA
 No notice of hearing

RULE 50. DISMISAL OF APPEAL

APPEAL (RF-PUSANAN)
1. Failure of the record on appeal to show on its face that the appeal was taken within the
period fixed by these rules;
2. Failure to file the notice of appeal or the record on the appeal within the period
prescribed by these rules; no estoppel
3. Failure of the appellant to pay the docket and other lawful fees as provide in Sec. 5, Rule
40 and Sec 4, Rule 41;
4. Unauthorized alterations, commissions or additions in the approved record on appeal as
provide in Sec 4, Rule 44;
5. Failure of appellant to serve and file the required number of copies of his brief or
memorandum within the time provided by these Rules;
6. Absence of specific assignment of errors in the appellant’s brief, or of page references
to the record as required in Sec 13, par a, c, d and f, Rule 44;
7. Failure of the appellant to take the necessary steps for the correction or completion of
the record within the time limited by the court in its order;
8. Failure of the appellant to appear at the preliminary conference under Rule 48 or to
comply with the orders, circulars, or directives of the court without justifiable cause;
and
 9. The fact that the order or judgment appealed from is not appealable.

Refer Rule 41, Section 1.

Note: With the exception of Section 1 (b), dismissal of an appeal is DIRECTORY and not mandatory
(Advincula v. IAC, G.R. No. 75310, Dec. 10, 1987).

OTHER GROUNDS for the dismissal of an appeal are: (AMF)

1. By agreement of the parties, as where the case was amicably settled by them;
2. Where the appealed case has become moot or academic; and
3. Where the appeal is frivolous or dilatory.

Failure to File Notice of Appeal
Jurisdictional
Decisions becomes FINAL AND EXECUTORY
upon failure to move for reconsideration
Failure to File Brief Within the Period
Not jurisdictional, maybe waived by the parties
Results in abandonment of appeal, which
could lead to DISMISSAL upon failure to move
for reconsideration

SECTION 2. DISMISSAL OF IMPROPER APPEAL TO THE COURT OF APPEALS

No transfer of appeals, erroneously taken to it or to the Court of Appeal, whichever of these tribunals has
appropriate appellate jurisdiction, will be allowed. Also elevating such appeal by the wrong mode of
appeal shall be a GROUND FOR DISMISSAL.

A resolution of the Court of Appeal dismissing the appeal and remaining the case to the trial court for
further proceedings is merely INTERLOCUTORY. HENCE, a motion for its reconsideration filed year later
may be entertained and granted.
The Court of Appeal may dismiss the appeal outright even without motion.

The remedy if dismissed for improper appeal: To re-file it in the proper forum but has to be within the
prescribed period.

SECTION 3. WITHDRA WAL OF APPEAL

A matter or right before the filing of the appellee’s brief.

Note: while under this section, an appeal may be withdrawn by the appellants as a matter of right at any
time before the filing of the appellee’s brief; however the rule does not apply where the notice of the
withdrawal filed by new counsel did not bear the applicant’s conformity (Pioneer Insurance and Surety
Corp. v. De Dios Transportation, G.R No. 147010, July 18, 2003).

RULE 51: JUDGMENT

SECTON 1. WHEN CASE DEEMED SUBMITTED FOR JUDGMENT

A. In ordinary appeals
1. No hearing on the merits – Upon the filing of the last pleading, brief or memorandum; or
expiration of the period for its filing;
 2. Hearing is held – Upon its termination or upon the filing of the last pleading or
memorandum as may be required or permitted to be filed by the court; or expiration of the
period by its filing;
B. In originals actions and petitions for review
1. No comment is filed – Upon expiration of the period to comment;
2. No hearing is held – Same as in A (1);
3. Hearing is held –Same as in A(2);

SECTION 2. BY WHOM RENDERED

Members who participated in the deliberation on the merits of the case before its assignment to a
member for the writing of the decision.

SECTION 3. QUORUM AND VOTING IN THE COURT

To be binding, a judgment must be duly signed and promulgated during the incumbency of the judge
who signed it.
Note: Where the decision was promulgated after two of the three justices necessary to constitute a
quorum in a division had lost their authority to act as justices, said decision is null and void (Lao vs. To-
Chip, G.R No.76594, Feb. 16, 1988).

SECTION 4. DISPOSITION OF THE CASE

SECTION 5. FORM OF DECISION

The requirement of the statement of facts and the law refers to a decision or for that matter a final
resolution. The same are not required on minute resolutions since these usually dispose of the case not
on its merits but on procedural or technical considerations.

With respect to petition for review and motions for reconsideration, the Constitution merely requires a
statement of the legal basis for the denial thereof or refusal of due course thereto. The court may opt,
bit it does not required to issue an extended resolution thereon.

Decisions and resolution of a court in appealed cases shall clearly and distinctly state the findings of fact
and the conclusions of law on which they are based, which may be contained in the decision or final
resolution itself, or adopted by reference from those set forth in the decision, order, or resolution
appealed from (Sec. 40, BP 129).

Memorandum Decision is one rendered by an appellate court which incorporates by reference the
findings of fact and conclusions of law contained in the decision of lower court (Sec. 24, Interim Rules for
Memorandum Decision).

SECTION 6. HARMLESS ERROR RULE (IN APPEAL)

The court, at every stage of the proceeding, must disregard any error of defect which does not affect the
substantial rights of the parties such as error in admission or exclusion of evidence or error or defect in
the ruling or order.
General Rule: The appellate court can only rule on the basis of grounds raised as errors on appeal.

Exceptions:
1. The affecting jurisdiction over the subject matter;
2. Evidently plain and clerical errors within the contemplation of law;
3. In order to subserve the ends of justice;
4. Matters raised in the trial court having some bearing on the issue which the parties failed to
raise or which the lower court ignored; and
5. Matters closely related to an error assigned.

SECTION 7. JUDGMENT WHERE THERE ARE SEVERAL PARTIES

SECTION 8. QUESTIONS THAT MAY BE DECIDED

Unless assigned or closely-related to or dependent on an assigned error, no error shall be considered.

Exceptions:
1. Error in the jurisdiction over the subject matter; or
2. Validity of the judgment appealed from or the proceeding therein.

SECTION 9. PROMULGATION AND NOTICE OF JUDGMENT

In justifiable situations or by agreement in the division, the filing of dissenting or separate opinions may
be reserved or the majority opinion may be promulgated without prejudice to the subsequent issuance
of a more extended opinion, provided the requisite votes for promulgation of judgment have been
obtained and recorded.

SECTION 10. ENTRY OF JUDGMENTS AND FINAL RESOLUTIONS

SECTION 11. EXECUTION OF JUDGMENT

RULE 52: MOTION FOR RECONSIDERATION

SECTION 1. PERIOD FOR FILING

 Within 15 days from notice.

 The rules now require the service of the motion to the adverse party.

SECTION 2. SECOND MOTION FOR RECONSIDERATION

The rules prohibit a second motion for reconsideration by the SAME party.

Note: The prohibition does not include interlocutory orders (Dizon vs. CA, G.R. No. 96296, June 18,
1992).

SECTION 3. RESOLUSION OF THE MOTION

Ninety (90) days from the date the CA declares it submitted for resolution.

This time limit applies only to MR in CA. It does not apply to MR in SC, pursuant to the exception in Sec.
2 (b), Rule 56.

SECTION 4. STAY OF EXECUTION

RULE 53. NEW TRIAL

SECTION 1. PERIOD FOR FILING; GROUND

Filing of a motion for new trial is at any time after the perfection of the appeal from the decision of the
lower court and before the Court of Appeals loses jurisdiction over the case.
 The ONLY GROUND is NEWLY DISCOVERED EVIDENCE which could not been discovered prior to
the trial in the court below by the exercise of due diligence and of such character as would
probably alter the result thereof. A second motion for new trial in the CA would not be possible,
unlike in Sec. 5 Rule 37.

Note: Rule 53 is not applicable to the SC. It is not a trier of facts.

SECTION 2. HEARING AND ORDER

Testimonies may be taken orally or by depositions.

SECTION 3. RESOLUTION OF THE MOTION

Ninety (90) days from the date the CA declares it submitted for resolution.

SECTION 4. PROCEDURE IN NEW TRIAL

RULE 54: INTERNAL BUSINESS

SECTION 1. DISTRIBUTION OF CASES AMONG DIVISIONS

SECTION 2. QUORUM OF THE COURT

RULE 55: PUBLICATION OF JUDGMENTS AND FINAL RESOLUTIONS

SECTION 1. PUBLICATION

SECTION 2. PREPARATION OF OPINIONS FOR PUBLICATION

SECTION 3. GENERAL MAKE-UP OF VOLUMES

Official reports of court decisions which are published by the Government and, therefore, constitute
primary authority thereon, are those in the Philippine Reports, all of which are authorized by law
(Regalado, F. Remedial Law Compandium Vol. 1. 9 th ed. P. 659).

RULE 56. PROCEDURE IN THE SUPREME COURT

A. ORIGINAL CASES

SECTION 1. ORIGINAL CASES COGNIZABLE

The rule specifically states which cases may be originally filed with the Supreme Court.
1. Petition for certiorari, prohibition, mandamus, quo warranto, habeas corpus;
2. Disciplinary proceedings against members of the judiciary and attorneys;
3. Cases affecting ambassadors other public ministers and consuls; and
4. Petition for writ of amparo and habeas data.

SECTION 2. RULES APPLICABLE

Rules 46, 48, 49, 51, 52 and 56 subject to certain exceptions.

B.APPEALED CASES

SECTION 3. MODE OF APPEAL

An appeal to the Supreme Court may be taken only by a petition for review on certiorari (Rule 45).

SECTION 4. PROCEDURE

SECTION 5. GROUNDS FOR DISMISSAL OF APPEAL (TM-PReCEN)

1. Failure to take the appeal within the reglementary period;

2. Lack of merit in the petition;
3. Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs;
4. Failure to comply with the requirements regarding proof of service and contents of and the
documents which should accompany the petition;
5. Failure to comply with any circular, directive or order of the SC without justifiable cause;
6. Error in the choice or mode of appeal, and
7. Fact that the case not appealable to the SC.

Note: The dismissal of the appeal may be motu proprio or on motion of the respondent.

SECTION 6. DISPOSITION OF IMPROPER APPEAL

Improper appeal means the choice or mode of appeal is correct but the appellant raises issues which
the court could not resolve (E.g. Where the petition for review on certitiorari was taken but factual
issues are invoked for resolution).

In this instance the case may be referred to the CA, although the SC may also dismiss the appeal.
Erroneous appeal means error in the choice or mode of appeal (E.g. Where the appeal taken to the SC is
by notice of appeal instead of a petition for review on certitiorari).

In this instance the appeal shall be dismissed outright.

SECTION 7. PROCEDURE IF OPINION IS EQUALY DIVIDED

PROVISIONAL REMEDIES

Provisional Remedies are temporary, auxiliary, and ancillary remedies available to a litigant for the
protection and preservation of his right while the main action is pending (Riano, Civil Procedure, 2007
Ed., p.436).

The FOLLOWING are the rules provisional remedies provided for in the Rules of Court:
1. Preliminary Attachment (Rule 57);
2. Preliminary Injunction (Rules 58);
3. Receivership (Rule 59);
4. Replevin (Rule 60); and
5. Support Pedente Lite( Rule 61).

These provisional remedies are also available in criminal cases (Rule 127), and some special civil actions
and special proceedings.

Purpose of Provisional Remedies:

Provisional Remedies are resorted by litigants for nay of the following reasons:
1. To preserve or protect the rights or interests or litigants while the main action is pending;
2. To secure the judgment;
3. To preserve the status quo; and
4. To preserve the subject matter of the action.

OTHER PROVISIONAL REMEDIES

A. Issued by a family court
1. Temporary Custody of Minor Children
2. Order allowing Visitation Rights of Parents
B. Interim Reliefs in a Petition for a writ of Amparo
1. Temporary Protection Order
2. Inspection Order
3. Production Order
4. Witness Protection Order

Note: PD 1818 prohibit the issuance of injunctive writs not only against government entities but also
against any person or entity involved in the execution, implementation and operation of government
infrastructure projects.
 Inferior courts can grant all appropriate provisional remedies, provided the main case is within
its jurisdiction (Sec. 33 {1} BP 129).